Internal Revenue Service and Brookhaven Service Center, IRS (Respondents) and National Treasury Employees Union and NTEU Chapter 99 (Complainants)

[ v04 p185 ] 04:0185(30)CA
The decision of the Authority follows:

4 FLRA No. 30
INTERNAL REVENUE SERVICE
AND BROOKHAVEN SERVICE CENTER,
IRS
Respondents
and
NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTER 99
Complainants
Assistant Secretary
Case No. 30-08777(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE, IN THE ABOVE-ENTITLED PROCEEDING,
ISSUED HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENTS HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES IN VIOLATION OF SECTION
19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING
THAT THEY CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER. THE ADMINISTRATIVE LAW JUDGE ALSO FOUND
THAT THE RESPONDENTS HAD NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR
LABOR PRACTICES AND RECOMMENDED THAT THOSE PORTIONS OF THE COMPLAINT BE
DISMISSED. THE RESPONDENTS FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE COMPLAINANTS FILED A
REPLY TO THE RESPONDENTS' EXCEPTIONS.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE EXCEPTIONS FILED BY THE RESPONDENT AND THE
COMPLAINANTS' REPLY THERETO, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO
THE EXTENT CONSISTENT HEREWITH.
IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE SYSTEM
DEVELOPED BY THE RESPONDENTS FOR THE PURPOSE OF ESTABLISHING ACCEPTABLE
LEVELS OF PERFORMANCE BY MEANS OF STATISTICAL DATA INVOLVED A MATTER
ENCOMPASSED BY SECTION 11(A) OF THE ORDER, THE AUTHORITY'S DECISION IS
NOT TO BE CONSTRUED AS A FINDING THAT ANY PROPOSAL CONCERNED WITH THE
SUBJECT OF PROCEDURES USED TO DETERMINE ACCEPTABLE LEVELS OF
PERFORMANCE
WOULD BE WITHIN THE DUTY TO BARGAIN. RATHER, NOTING THAT THE
ADMINISTRATIVE LAW JUDGE WAS NOT PRESENTED WITH, NOR WAS HIS
DETERMINATION BASED UPON, SPECIFIC PROPOSALS WITH REGARD THERETO, IN OUR
VIEW, THE ADMINISTRATIVE LAW JUDGE MERELY RULED THAT SPECIFIC PROPOSALS
PERTAINING TO THE MATTER OF ESTABLISHED ACCEPTABLE LEVELS OF PERFORMANCE
BY MEANS OF STATISTICAL DATA COULD BE DRAFTED WHICH WOULD FALL WITHIN
THE SCOPE OF THE DUTY TO BARGAIN UNDER THE ORDER.
RESPONDENTS HAVE EXCEPTED TO THE ADMINISTRATIVE LAW JUDGE'S
"APPARENT" FINDING THAT RESPONDENTS' AGENT LAYCOCK RELIED UPON ARTICLES
VI AND VIII OF THE MULTI-CENTER AGREEMENT TO SUPPORT HIS STATED BELIEF
THAT THE SUBSTANCE OF THE DECISION TO ENUNCIATE PERFORMANCE EXPECTATIONS
WAS NON-NEGOTIABLE. THE AUTHORITY, HOWEVER, VIEWS THE CITATION OF THOSE
ARTICLES IN FOOTNOTE 13 OF THE RECOMMENDED DECISION AND ORDER NOT AS AN
IMPLICATION THAT LAYCOCK RELIED UPON THEM TO BUTTRESS AN ARGUMENT OF
NON-NEGOTIABILITY BUT, RATHER, AS AN INDICATION OF WHICH PORTIONS OF THE
COLLECTIVE BARGAINING AGREEMENT WERE REFERENCED IN THE PARTIES'
DISCUSSION OF THE ISSUE OF PERFORMANCE EXPECTATIONS.
RESPONDENTS TAKE ISSUE WITH THE ADMINISTRATIVE LAW JUDGE'S STATEMENT
AT PAGE 18 OF THE RECOMMENDED DECISION AND ORDER THAT SAUNDERS TESTIFIED
THAT "IN REASSIGNING TRANSCRIBERS BOTH PARTIES NEED A FIGURE OF 50% AS
AN AGREEABLE POINT OF PERFORMANCE." RESPONDENTS POINT OUT THAT SAUNDERS'
TESTIMONY CITED A FIGURE OF 60% AND THAT, THROUGH TRANSCRIPTION ERROR,
THIS FIGURE INCORRECTLY APPEARED AS 50%. RESPONDENTS MOVE THAT THE
TRANSCRIPT BE CORRECTED ACCORDINGLY AND THE COMPLAINANTS INTERPOSE NO
OBJECTION. THE MOTION IS HEREWITH GRANTED.
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135(B) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER, IRS,
SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING TIME PERIODS FOR MANAGEMENT TO RESPOND TO REQUESTS
FOR APPROVAL OF SCHEDULED LEAVE, OR REQUIRING THAT EXTENUATING
CIRCUMSTANCES BE SHOWN BY EMPLOYEES BEFORE MANAGEMENT WOULD APPROVE
LEAVE WITHOUT PAY FOR VACATION PURPOSES, OR ANY OTHER TERM OR CONDITION
OF EMPLOYMENT WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING
NEGOTIATIONS, WITHOUT NOTIFYING NATIONAL TREASURY EMPLOYEES UNION AND
NTEU CHAPTER 99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS
EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND
CONFER THEREON.
(B) INSTITUTING A PERFORMANCE EVALUATION SYSTEM, USING STATISTICAL
AVERAGES OR PERCENTAGES, TO MEASURE THE ACCEPTABLE LEVELS OF
PERFORMANCE
OF ITS EMPLOYEES, WITH ATTENDANT DISCIPLINARY ACTION IF SPECIFIED
STANDARDS ARE NOT MET, OR ANY OTHER TERM OR CONDITION OF EMPLOYMENT,
WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING NEGOTIATIONS, WITHOUT
NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES BY WHICH
STATISTICS WOULD BE USED TO EVALUATE SUCH ACCEPTABLE LEVELS OF
PERFORMANCE, AND ON THE IMPACT AND IMPLEMENTATION OF SUCH EVALUATION
SYSTEM.
(C) REFUSING TO MEET AND CONFER IN GOOD FAITH WITH THE NATIONAL
TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, WITH RESPECT TO: RESPONSES BY MANAGEMENT, WITHIN
CERTAIN TIME PERIODS, TO REQUESTS BY EMPLOYEES FOR APPROVAL OF SCHEDULED
LEAVE; APPROVAL BY MANAGEMENT OF LEAVE WITHOUT PAY FOR VACATION
PURPOSES; ANY PERFORMANCE EVALUATION SYSTEM BY MANAGEMENT UTILIZING
STATISTICAL AVERAGES OR PERCENTAGES TO MEASURE THE ACCEPTABLE LEVELS OF
PERFORMANCE OF ITS EMPLOYEES, WITH ATTENDANT DISCIPLINARY ACTION IF
EMPLOYEES FAIL TO MEET SPECIFIED STANDARDS.
(D) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) RESCIND THAT PART OF ITS EXPECTATIONS PACKAGE ISSUED AND
IMPLEMENTED ON MARCH 20, 1978, WHICH PROVIDES THAT: REQUESTS FOR
SCHEDULED LEAVE WILL BE RESPONDED TO BY MANAGEMENT WITHIN THREE DAYS AND
LEAVE WITHOUT PAY WITHIN 10 DAYS UNLESS THERE ARE UNUSUAL CIRCUMSTANCES;
LEAVE WITHOUT PAY WILL NOT BE APPROVED FOR VACATION PURPOSES UNLESS
THERE ARE EXTENUATING CIRCUMSTANCES; A PERFORMANCE EVALUATION SYSTEM,
USING STATISTICAL AVERAGES OR PERCENTAGES, TO MEASURE ACCEPTABLE LEVELS
OF PERFORMANCE OF EMPLOYEES, WITH ATTENDANT DISCIPLINARY ACTION IF
SPECIFIED STANDARDS ARE NOT MET.
(B) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99
OF ANY INTENDED CHANGE IN POLICY WITH RESPECT TO: THE TIME PRESCRIBED
FOR MANAGEMENT TO RESPOND TO REQUESTS BY EMPLOYEES FOR SCHEDULED LEAVE;
THE APPROVAL BY MANAGEMENT OF EMPLOYEES' REQUESTS TO TAKE LEAVE WITHOUT
PAY FOR VACATION PURPOSES; A PERFORMANCE EVALUATION SYSTEM, USING
STATISTICAL AVERAGES OR PERCENTAGES, TO MEASURE THE ACCEPTABLE LEVELS OF
PERFORMANCE OF ITS EMPLOYEES, AND UPON REQUEST, MEET AND CONFER IN GOOD
FAITH TO THE EXTENT CONSONANT WITH LAW, REGULATIONS AND THE STATUTE ON
SUCH INTENDED CHANGES.
(C) POST AT ITS FACILITY AT THE BROOKHAVEN SERVICE CENTER, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE CHIEF OF THE DATA CONVERSION BRANCH AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE CHIEF OF THE BRANCH
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY
THEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 11, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE A TIME PERIOD WITH RESPECT TO RESPONSE BY
MANAGEMENT TO REQUESTS FOR APPROVAL OF SCHEDULED LEAVE, OR REQUIRE THAT
EXTENUATING CIRCUMSTANCES BE SHOWN BY EMPLOYEES BEFORE MANAGEMENT WILL
APPROVE LEAVE WITHOUT PAY FOR VACATION PURPOSES, WITHOUT FIRST NOTIFYING
THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99 AND AFFORDING
SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTER TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
WE WILL NOT INSTITUTE A PERFORMANCE EVALUATION SYSTEM, USING
STATISTICAL AVERAGES OR PERCENTAGES TO MEASURE ACCEPTABLE LEVELS OF
PERFORMANCE OF OUR EMPLOYEES, WITH ATTENDANT DISCIPLINE IF SPECIFIED
STANDARDS ARE NOT MET, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 99, AND AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTER TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND THAT PART OF THE EXPECTATIONS PACKAGE ISSUED AND
IMPLEMENTED ON MARCH 20, 1978, WHICH PROVIDES THAT: REQUESTS FOR
SCHEDULED LEAVE WILL BE RESPONDED TO BY MANAGEMENT WITHIN THREE DAYS AND
LEAVE WITHOUT PAY WITHIN 10 DAYS UNLESS THERE ARE UNUSUAL CIRCUMSTANCES;
LEAVE WITHOUT PAY WILL NOT BE APPROVED FOR VACATION PURPOSES UNLESS
THERE ARE EXTENUATING CIRCUMSTANCES; A PERFORMANCE EVALUATION SYSTEM,
USING STATISTICAL AVERAGES OR PERCENTAGES, TO MEASURE ACCEPTABLE LEVELS
OF PERFORMANCE OF EMPLOYEES, WITH ATTENDANT DISCIPLINARY ACTION IF
SPECIFIED STANDARDS ARE NOT MET.
WE WILL NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
99 OF ANY INTENDED CHANGE IN POLICY WITH RESPECT TO THE TIME PRESCRIBED
FOR MANAGEMENT TO RESPOND TO REQUESTS BY EMPLOYEES FOR SCHEDULED LEAVE;
THE APPROVAL OF MANAGEMENT OF LEAVE WITHOUT PAY FOR VACATION PURPOSES;
A PERFORMANCE EVALUATION SYSTEM, USING STATISTICAL AVERAGES OR
PERCENTAGES, TO MEASURE THE ACCEPTABLE LEVELS OF PERFORMANCE OF ITS
EMPLOYEES, AND UPON REQUEST, MEET AND CONFER ON SUCH MATTERS TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS AND THE STATUTE.
AGENCY OR ACTIVITY
DATED: . . . BY: . . . SIGNATURE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK REGION, WHOSE
ADDRESS IS 26 FEDERAL PLAZA, ROOM 241, NEW YORK, NY. 10007; AND WHOSE
TELEPHONE NUMBER IS (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ROBERT F. HERMANN, ESQUIRE
ASSISTANT REGIONAL COUNSEL
OFFICE OF THE REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
26 FEDERAL PLAZA (12TH FLOOR)
NEW YORK, NY 10007
FOR THE RESPONDENTS
WILLIAM F. WHITE, ESQUIRE
ASSOCIATE GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, DC 20006
FOR THE COMPLAINANTS
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREIN
CALLED THE ORDER). A HEARING HEREIN WAS HELD BEFORE THE UNDERSIGNED ON
AUGUST 2, 1979 AT NEW YORK, NY AND CONTINUED THEREAFTER ON SEPTEMBER 20,
1979 AT RON KON KOMA, NY. THE SAID HEARING WAS CONDUCTED PURSUANT TO A
NOTICE OF HEARING ON COMPLAINT ISSUED ON JUNE 28, 1978 BY THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK REGION.
A COMPLAINT WAS FILED ON SEPTEMBER 8, 1978 BY NATIONAL TREASURY
EMPLOYEES UNION (NTEU) AND NTEU CHAPTER 99 (HEREIN CALLED COMPLAINANTS
OR THE UNION) AGAINST INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE
CENTER, IRS (HEREIN CALLED RESPONDENTS). IT IS ALLEGED, IN SUBSTANCE,
THAT ON MARCH 20, 1978 RESPONDENT BROOKHAVEN SERVICE CENTER ISSUED A
DOCUMENT ENTITLED "DATA CONVERSION BRANCH, BROOKHAVEN SERVICE CENTER,
EXPECTATIONS" TO ALL DATA TRANSCRIBERS EMPLOYED AT THIS CENTER.
COMPLAINANTS ALLEGE, FURTHER, THAT VARIOUS PROVISIONS IN THE
EXPECTATIONS PACKAGE CONSTITUTED UNILATERAL CHANGES IN WORK PRACTICES
AND PROCEDURES; THAT SUCH PROVISIONS ALTERED THE WRITTEN AGREEMENT
BETWEEN THE PARTIES. IN AVERRING THAT RESPONDENTS VIOLATED SECTIONS
19(A)(1) AND (6) OF THE ORDER, THE COMPLAINANT STATED THAT, APART FROM
THE UNILATERAL CHANGES EFFECTED BY THE EMPLOYER, THE UNION WAS DENIED
THE OPPORTUNITY TO NEGOTIATE RE THE SUBSTANCE AS WELL AS THE IMPACT AND
IMPLEMENTATION OF THE SUBJECTS CONTAINED IN THE PACKAGE.
RESPONDENTS FILED A RESPONSE TO COMPLAINT IN THE FORM OF A MOTION TO
DISMISS, DATED SEPTEMBER 29, 1978. IT WAS CONTENDED THAT THE COMPLAINT
WAS UNTIMELY FILED; SUPPORTING DATA WAS NOT SIMULTANEOUSLY FILED
THEREWITH; AND THAT RESPONDENTS WERE NOT SERVED AT THE SAME TIME THAT
SAID COMPLAINT WAS FILED. THE MOTION TO DISMISS WAS REFERRED TO THE
ADMINISTRATIVE LAW JUDGE PRESIDING AT THE HEARING HEREIN. RESPONDENTS
RENEWED THE MOTION AT THE HEARING AND SEEK A DISMISSAL OF THE COMPLAINT
BASED ON THE AFORESAID CONTENTIONS. NO OTHER RESPONSE /1/ WAS FILED BY
RESPONDENTS TO THE COMPLAINT.
BOTH PARTIES WERE REPRESENTED AT THE HEARING. THEY WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL
AS CROSS-EXAMINE WITNESSES. THEREAFTER ALL PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATIONS OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. THE BROOKHAVEN SERVICE CENTER (HEREINAFTER CALLED THE CENTER) IS
ONE OF TEN SERVICE CENTERS MAINTAINED BY THE INTERNAL REVENUE SERVICE
THROUGHOUT THE UNITED STATES FOR THE PROCESSING OF TAX RETURNS.
BROOKHAVEN CENTER PROCESSES RETURNS FILED BY TAXPAYERS IN METROPOLITAN
NEW YORK AND NORTHERN NEW JERSEY. THE DATA CONVERSION BRANCH THEREAT
EMPLOYS ABOUT 700 EMPLOYEES WHO ARE, FOR THE MOST PART, CLASSIFIED AS
DATA TRANSCRIBERS. THESE EMPLOYEES PUNCH CODED INFORMATION FROM TAX
RETURNS INTO TERMINAL MACHINES WHICH FEED THE DATA INTO A COMPUTER.
2. AT ALL TIMES MATERIAL HEREIN COMPLAINANT NTEU CHAPTER 99 HAS BEEN
THE COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES IN THE DATA
CONVERSION BRANCH OF THE CENTER.
3. A MULTI-CENTER AGREEMENT (MCA) WAS EXECUTED BY THE PARTIES HEREIN
ON JULY 18, 1975 COVERING THE DATA CONVERSION BRANCH EMPLOYEES, AS WELL
AS OTHERS, AT THE CENTER. THE AGREEMENT, WHICH ALSO COVERED UNIT
EMPLOYEES AT THE REMAINING SERVICE CENTERS, WAS EFFECTIVE BY ITS TERMS
FOR THREE YEARS FROM OCTOBER 18, 1975. AS A COLLECTIVE BARGAINING
CONTRACT, IT CONTAINED VARIOUS TERMS AND CONDITIONS OF EMPLOYMENT, SOME
OF WHICH WILL BE REFERRED TO HEREINBELOW.
4. AT ALL TIMES MATERIAL HEREIN THE PRODUCTION OF THE DATA
TRANSCRIBERS HAS BEEN MEASURED ON A QUANTITATIVE AS WELL AS QUALITATIVE
BASIS. IT HAS BEEN THE PRACTICE AT THE CENTER TO EVALUATE THOSE
INDIVIDUALS QUARTERLY BY MEANS OF A SYSTEM KNOWN AS THE "INDIVIDUAL
SYSTEM FOR EVALUATION OF PERFORMANCE" (HEREINAFTER CALLED ISEP). UNDER
THIS PROCEDURE EACH EMPLOYEE TURNS IN A TIME REPORT, KNOWN AS FORM 3081,
SHOWING HIS PRODUCTION IN A GIVEN PERIOD. THIS INFORMATION IS FED INTO
A COMPUTER AND EACH EMPLOYEE'S PRODUCTION RATE IS THEN DETERMINED. A
PEER GROUP /2/ AVERAGE, WHICH IS BRANCH-WIDE, IS ALSO DETERMINED, AND A
COMPARISON CAN BE MADE OF THE INDIVIDUAL TO THE PEER GROUP AS A WHOLE.
EACH EMPLOYEE RECEIVED A WEEKLY PRINTOUT DESIGNATED AS "INDIVIDUAL
PERFORMANCE REPORT," WHICH SHOWED HIS COMPARISON TO THE PEER GROUP; AND
A QUARTERLY REPORT WAS GIVEN THE EMPLOYER SHOWING THE RESULTS,
QUANTITATIVELY AND QUALITATIVELY, FOR EACH PERSON DURING SAID PERIOD.
PRIOR TO THE ISSUANCE OF THE PACKAGE A SYSTEM EXISTED AT THE CENTER
WHEREBY AN APPRAISAL WAS MADE OF THE PERFORMANCE BY EMPLOYEES. BY USE
OF PRODUCTION STATISTICS-- DERIVED FROM REPORTS MADE BY EMPLOYEES AS TO
THEIR PRODUCTION AND THE TIME SPENT THEREON-- THE SYSTEM REFLECTED AT
WHAT RATE THE EMPLOYEE PERFORMED AND HIS EFFECTIVENESS COMPARED TO THE
PEER GROUP PERCENTAGEWISE. THE USE OF THESE STATISTICS FOR PROMOTIONS
OF REGULAR EMPLOYEES AND FOR FURLOUGH/RECALL OF SEASONALS WERE
DESCRIBED
IN THE MCA, AND THE PARTIES HAD AGREED TO UTILIZE THEM FOR REASSIGNMENT
EVALUATIONS. /3/ FURTHER, THE PERFORMANCE EXPECTATION HAD ALWAYS BEEN
DENOTED AS A 3-3-3 RATIO WHICH IS SET FORTH IN ARTICLE 6, SECTION 6 OF
THE MCA. RATINGS WERE GIVEN FROM 5 (THE HIGHEST) TO 1 (THE LOWEST) AND
A 3 IN QUANTITY, 3 IN QUALITY, AND 3 IN DEPENDABILITY INDICATED A FULLY
ACCEPTABLE EMPLOYEE.
5. IN 1977 MICHAEL SAUNDERS, CHIEF OF THE DATA CONVERSION BRANCH,
CONCLUDED THAT THE EMPLOYEES OF THIS DIVISION WERE PERFORMING POORLY.
THIS CENTER RANKED TENTH IN THE LIST OF SERVICE CENTERS, AND SAUNDERS
DISCUSSED THE MATTER WITH KENNETH HART, PRESIDENT OF NTEU CHAPTER 99.
THE UNION OFFICIAL AGREED THAT A NEED EXISTED TO INCREASE PRODUCTIVITY
AND ELIMINATE DEFICIENCIES. SAUNDERS ALSO STATED THAT THE CENTER
EXPECTED TO IMPOSE STANDARDS OF PERFORMANCE UPON EMPLOYEES, AND UNLESS
THESE STANDARDS WERE MET SOME ACTION WOULD BE TAKEN BY MANAGEMENT.
6. IN ACCORDANCE WITH THE PLAN TO INCREASE EFFICIENCY AND LOWER
COSTS INCURRED BY REASON OF THE POOR PERFORMANCE AT THE DATA CONVERSION
BRANCH, A DOCUMENT WAS DRAFTED BY SAUNDERS ENTITLED "DATA CONVERSION
BRANCH, BROOKHAVEN SERVICE CENTER, EXPECTATIONS." MANAGEMENT PROPOSED TO
DISTRIBUTE THIS DOCUMENT, OR PACKAGE, TO EMPLOYEES AND THUS INFORM THEM
OF WHAT THE EMPLOYER EXPECTED IN REGARD TO THEIR WORK PERFORMANCE.
7. THE EXPECTATION PACKAGE WAS DIVIDED INTO VARIOUS PARTS AS
FOLLOWS: "WORK PRACTICE," "WORK RESPONSIBILITIES," "LEAVE AND THE
PURPOSE INTENDED," "PERFORMANCE EXPECTATIONS," AND "PERFORMANCE
EVALUATIONS." /4/ IN EACH SECTION THE PACKAGE DESCRIBED THE DUTIES OR
OBLIGATIONS OF THE EMPLOYEES, AS WELL AS CERTAIN RIGHTS ACCORDED SUCH
INDIVIDUALS. EACH AFORESAID PART CONCERNED ITSELF WITH VARIOUS RELATED
SUBJECTS AS FOLLOWS:
WORK PRACTICE
A) BEGINNING OF SHIFT
B) END OF SHIFT
C) BREAKS AND LUNCH
D) ABSENCE FROM UNIT
E) VISITING WITH OTHERS
F) TALKING
G) TELEPHONE USAGE
WORK RESPONSIBILITIES
A) USE OF HANDBOOK
B) WORK PRIORITIES
C) TEAMWORK
D) RECORD KEEPING
E) OVERTIME
F) DISCLOSURE OF INFORMATION
LEAVE AND THE PURPOSE INTENDED
A) SCHEDULED LEAVE
B) EMERGENCY ABSENCES
C) ANNUAL LEAVE
D) SICK LEAVE
E) LEAVE WITHOUT PAY
F) ABSENT WITHOUT LEAVE
PERFORMANCE EXPECTATIONS SET FORTH EXPECTATIONS FOR DATA TRANSCRIBERS
EXPRESSED IN PERCENTAGES OF EFFECTIVENESS AS TO QUALITY OR QUANTITY OF
PRODUCTION UNDER THE EXISTING EVALUATIONS SYSTEM. EMPLOYEES WERE
EXPECTED TO PERFORM AT AN 80% EFFECTIVENESS LEVEL THE FIRST WEEK; 90%
THE SECOND WEEK; AND 100% BY THE THIRD WEEK. ONLY 100% /5/ WAS DEEMED,
UNDER THIS SECTION, TO BE A FULLY ACCEPTABLE LEVEL OF PERFORMANCE.
ANYTHING BELOW 85% WAS DECLARED TOTALLY UNACCEPTABLE, AND AN EMPLOYEE
PERFORMING AT THAT LEVEL OF EFFECTIVENESS WAS DEEMED TO BE INEFFICIENT.
8. A COPY OF THE DRAFTED EXPECTATIONS PACKAGE WAS GIVEN TO UNION
OFFICIAL HART ON FEBRUARY 20, 1978. /6/ THEREAFTER, AND BY LETTER DATED
FEBRUARY 21 HART NOTIFIED THE DIRECTOR OF THE CENTER THAT CHAPTER 99
INTENDED TO NEGOTIATE RE THE SUBSTANCE AND IMPACT OF THE PROPOSED
CHANGES IN THE EXPECTATIONS. THE LOCAL UNION, MOREOVER, REQUESTED
THEREIN THAT A FULL INFORMATIONAL MEETING BE HELD PRIOR TO NEGOTIATIONS
SO AS TO INSURE ITS COMPLETE UNDERSTANDING OF THE PACKAGE. IT ALSO
REQUESTED THAT THE LABOR-MANAGEMENT RELATIONS COMMITTEE BE CONVENED TO
DISCUSS THE SUBJECT, AS PER ARTICLE 36, SECTION 3B OF THE MCA. HART
SUGGESTED THAT THE PACKAGE NOT BE DISTRIBUTED OR IMPLEMENTED UNTIL THE
CLOSE OF NEGOTIATIONS.
9. A MEETING WAS HELD ON FEBRUARY 24 ATTENDED BY VARIOUS
REPRESENTATIVES OF BOTH MANAGEMENT AND CHAPTER 99. HART ACTED AS
SPOKESMAN FOR THE UNION WHEREAS THOMAS LAYCOCK WAS THE CHIEF
REPRESENTATIVE FOR RESPONDENTS. HART STATED THEREAT THAT HE REQUESTED
THE MEETING FOR INFORMATIONAL PURPOSES SINCE HE WANTED TO UNDERSTAND THE
PROVISIONS CONTAINED IN THE PACKAGE. THE UNION OFFICIAL HAD PREPARED A
SERIES OF QUESTIONS WHICH HE READ, AND, IN EACH INSTANCE, LAYCOCK
REPLIED HERETO. THE UNION EXPRESSED CONCERN THAT RESPONDENTS WERE
CHANGING THE PAST PRACTICES AND PROCEDURES, AS WELL AS ALTERING
PROVISIONS OF THE MCA. MANAGEMENT INSISTED IT WAS MERELY ATTEMPTING TO
REDUCE TO WRITING PAST PRACTICES AT THE CENTER; THAT MANY WORK
PROCEDURES OR CONDITIONS HAD NOT BEEN THE SUBJECT OF A WRITTEN
AGREEMENT; AND THAT, IN NO EVENT, WAS IT ATTEMPTING TO CHANGE EITHER
THE PRACTICES, PROCEDURES, OR THE MCA.
10. DURING THE FEBRUARY 24 MEETING HART RAISED SEVERAL OBJECTIONS TO
THE LANGUAGE OF VARIOUS PROVISIONS IN THE PACKAGE. THE SUBJECTS
DISCUSSED, AND THE POSITIONS TAKEN BY EACH PARTY IN RESPECT THERETO WERE
AS FOLLOWS:
WORK PRACTICE
A. BEGINNING OF SHIFT
UNDER THIS PARTICULAR PROVISION MANAGEMENT STATED THAT IT EXPECTED AN
EMPLOYEE TO BE AT HIS TERMINAL READY FOR WORK AT WHATEVER TIME WAS
DESIGNATED AS THE START OF HIS SHIFT. IT WAS STATED, FURTHER, THAT TO
BE CONSIDERED "ON TIME" THE EMPLOYEE MUST BE AT HIS DESIGNATED WORK AREA
AND JUST NOT IN THE BUILDING.
HART TOLD LAYCOCK THAT THIS CLAUSE AS WRITTEN MIGHT LEAD EMPLOYEES TO
BELIEVE THEY HAD TO START WORK, OR PICK UP SOME, BEFORE THE BEGINNING OF
THEIR SHIFT. THE UNION FELT THE WORKERS WOULD DEEM THIS A CHANGE IN
PAST PRACTICE. LAYCOCK INDICATED THERE WAS NO INTENTION TO HAVE
OPERATORS COMMENCE WORK BEFORE THIS SHIFT STARTED. AT THE SUGGESTION OF
MANAGEMENT THE LANGUAGE WAS CHANGED TO READ THAT AN EMPLOYEE WAS
EXPECTED TO BE IN HIS UNIT READY FOR WORK. THE UNION ASSENTED TO THIS.
B. TELEPHONE USAGE
EMPLOYEES WERE ADVISED, UNDER THIS SECTION, TO LIMIT TELEPHONE CALLS
TO EMERGENCIES AND TO USE PUBLIC PHONES FOR CALLS NOT OF AN URGENT
NATURE. HART INQUIRED WHETHER PHONES WOULD NOT BE USED TO CONTACT A
UNION STEWARD DURING WORKING TIME, AND HE ASKED IF MANAGEMENT HAD A
PROBLEM IN THIS REGARD. THE EMPLOYER AGREED THAT THE PHONE COULD BE
USED FOR SUCH A PURPOSE, AND THE REVISED PACKAGE-- WHICH WAS PREPARED
LATER IN FEBRUARY-- PROVIDED THAT "CALLING THE UNION STEWARD IS BUSINESS
CONNECTED AND IS PERMISSIBLE."
WORK RESPONSIBILITIES
A. USE OF HANDBOOKS
THE UNION AGREED THAT, AS STATED IN THE PACKAGE, EMPLOYEES SHOULD BE
INFORMED THEY WERE RESPONSIBLE FOR FOLLOWING HANDBOOK PROCEDURES. SINCE
THE WORKERS ARE ADVISED TO CONSULT THEIR SUPERVISOR OR MANAGER AS TO ANY
MATTERS NOT COVERED BY THE HANDBOOK, HART ASKED LAYCOCK WHAT WOULD THE
EMPLOYEES DO IF EITHER OFFICIAL WAS NOT PRESENT AT THE TIME. LAYCOCK
REPLIED THAT IF THE SUPERVISOR LEAVES THE UNIT, SOMEONE ELSE SHOULD BE
DESIGNATED IN HIS STEAD. FURTHER, BOTH PARTIES AGREED THAT THIS SECTION
SHOULD INCLUDE A CLAUSE TO THE EFFECT THAT DEVIATIONS FROM THE HANDBOOK
ARE PROHIBITED UNLESS DIRECTED IN WRITING BY THE DIVISION CHIEF.
B. RECORD KEEPING
THE PACKAGE PROVIDED THAT THE EMPLOYEES' TIME SHEETS (FORM 3081)
SHOULD BE FILLED OUT AND TURNED IN TO THE MANAGER AT THE END OF A SHIFT
EACH DAY. IT ALSO STATES THAT THE TIME SPENT IN PREPARING FORM 3081
SHOULD ALWAYS BE CHARGED TO DIRECT TIME. AT THE MEETING ON FEBRUARY 24
HART STATED THAT IN THE PAST, WHERE EMPLOYEES HAD VOLUMINOUS RECORDS TO
FILE, THEY WERE GIVEN OFFICIAL TIME TO FILL OUT FORM 3081. MANAGEMENT
INSISTED THAT THE PRACTICE, AS OUTLINED IN THE HANDBOOK, WAS TO CHARGE
THIS TIME TO DIRECT OPERATIONS; THAT WHERE THERE WERE UNUSUAL
CIRCUMSTANCES-- AS AN ASSIGNMENT TO MULTIPLE PROGRAMS-- THE EMPLOYER
GAVE OVERHEAD TIME IN SUCH INSTANCES. THUS, ALTHOUGH THE UNION DEEMED
THIS A CHANGE, /7/ MANAGEMENT STATED IT WAS IN CONFORMITY WITH THE USUAL
PRACTICE.
C. OVERTIME
THE ORIGINAL PACKAGE DECLARED THAT EMPLOYEES "WILL BE EXPECTED TO
WORK OVERTIME IF IT DEEMS NECESSARY." IT ALSO SET FORTH THAT OVERTIME IS
PAID FOR WORK OVER 8 HOURS IN A DAY OR 40 HOURS IN A WEEK. THE UNION
WAS CONCERNED THAT ONE MIGHT INFER THAT OVERTIME WAS MANDATORY, AND HART
INQUIRED IF THIS WAS THE CASE. MANAGEMENT STATED AT THE MEETING THAT
NORMALLY EMPLOYEES WERE NOT REQUIRED TO WORK OVERTIME. THE OVERTIME
PROVISION ALSO STATED THAT ALTHOUGH NIGHT SHIFT EMPLOYEES MAY BE
REQUESTED TO WORK ADDITIONAL HOURS, THEY WOULD BE PAID AT THE REGULAR
RATES "UNLESS THEY MEET THIS CRITERIA." HART POINTED OUT THIS WAS
CONFUSING, AND MANAGEMENT STUCK THE ENTIRE CLAUSE DEALING WITH NIGHT
SHIFT FROM THE SECOND PACKAGE.
ARTICLE 21 OF THE MCA DEALS WITH THE ASSIGNMENT OF OVERTIME WORK TO
EMPLOYEES. IT STATES, IN SUBSTANCE, THAT EMPLOYEES WHO ARE REQUIRED BY
THE EMPLOYER TO WORK OVERTIME WILL BE COMPENSATED IN ACCORDANCE WITH
APPLICABLE LAWS AND REGULATIONS; THAT OVERTIME WILL BE DISTRIBUTED
EQUITABLY; THAT THE UNION WILL BE FURNISHED WITH RECORDS OF OVERTIME
ASSIGNMENTS; AND THAT, WHEN CIRCUMSTANCES PERMIT, EMPLOYEES WILL BE
NOTIFIED 3 DAYS IN ADVANCE THEREOF. (SECTION 1, 2A, B, C, D).
LEAVE AND THE PURPOSE INTENDED
A. SCHEDULED LEAVE
THE ORIGINAL PACKAGE PROVIDED THAT ALL LEAVE SHOULD BE SCHEDULED IN
ADVANCE EXCEPT IN EXTREME OR UNAVOIDABLE CIRCUMSTANCES. FURTHER, THAT
NO VACATION REQUESTS WOULD BE APPROVED DURING PEAK PROCESSING SEASON
(USUALLY JAN.-JUNE) EXCEPT IN UNUSUAL CIRCUMSTANCES. HART OBJECTED TO
LIMITING THE VACATION PERIOD THUSLY. HE ALSO INQUIRED WHETHER ADVANCE
REQUESTS FOR LEAVE WOULD RECEIVE PROMPT RESPONSE. LAYCOCK AGREED TO SO
RESPOND, AND TO INCLUDE A PROVISO TO THAT EFFECT IN THE PACKAGE.
IN ITS FINAL FORM THE PACKAGE RETAINED THE REQUIREMENT THAT ALL LEAVE
/8/ BE SCHEDULED IN ADVANCE EXCEPT IN THE AFORESAID STATED INSTANCES.
MANAGEMENT DELETED ANY REFERENCE TO PEAK PROCESSING SEASON /9/ UNDER
"SCHEDULED LEAVE" AND THE LIMITATION SET FORTH IN THE FIRST PACKAGE.
HOWEVER, IN ORDER TO ASSURE THAT A RESPONSE TO LEAVE REQUESTS WOULD BE
PROMPT IT INCLUDED A CLAUSE AS FOLLOWS:
"REQUESTS FOR SCHEDULED LEAVE WILL BE RESPONDED TO BY YOUR MANAGER
WITHIN THREE DAYS AND
LWOP WITHIN 10 DAYS, UNLESS THERE ARE UNUSUAL CIRCUMSTANCES. UNLESS
THERE ARE EXTENUATING
CIRCUMSTANCES, LWOP WILL NOT BE APPROVED FOR VACATION PURPOSES."
THIS TIME LIMITATION WAS MENTIONED AT THE MEETING ON FEBRUARY 24. NO
STATEMENT IN REGARDS THERETO, OR SPECIFIC PROPOSAL, WAS MADE BY HART AT
THAT SESSION.
B. EMERGENCY ABSENCES
AN EMPLOYEE IS REQUIRED, UNDER THIS SECTION OF THE PACKAGE, TO NOTIFY
HIS SUPERVISOR WITHIN ONE HOUR OF HIS REPORTING TIME OF ANY ABSENCE
WITHOUT PRIOR APPROVAL. THE EMPLOYEE IS EXPECTED TO CALL IN HIMSELF OR
ASK SOMEONE ELSE TO MAKE THE CALL IF HE IS UNABLE TO DO SO. HART
INSISTED THIS WAS NOT THE PAST PRACTICE; THAT IT WAS SUFFICIENT IF
ANYONE CALLED AND ADVISED MANAGEMENT OF THE ABSENCE. LAYCOCK REPLIED
THAT MANY TIMES THE CALL IS NOT MADE BY A PERSON ON BEHALF OF THE
EMPLOYEE WHO EXPECTS TO BE ABSENT. HE EMPHASIZED THAT IT IS STILL THE
RESPONSIBILITY OF THE INVOLVED EMPLOYEE. THE FINAL PACKAGE RETAINS THIS
LANGUAGE BUT STRESSED THE IMPORTANCE OF THE CALLER TO CONVEY THE MESSAGE
CORRECTLY AND IDENTIFY THE LEAVE REQUESTED AND THE ESTIMATED LENGTH OF
ABSENCE. /10/
C. SICK LEAVE
IT WAS PROVIDED IN THE PACKAGE THAT WHERE SICK LEAVE WAS REQUIRED BY
AN EMPLOYEE IN EXCESS OF 3 DAYS, THE MANAGER, AT HIS OPTION, COULD
INSIST UPON A MEDICAL CERTIFICATE FROM THE EMPLOYEE'S DOCTOR. HART
INSISTED NO DOCTOR'S CERTIFICATE WAS REQUIRED BY MCA AND THAT THE
LANGUAGE THEREIN SHOULD CONTROL IN THIS INSTANCE. ARTICLE 16 OF MCA,
SECTION 3A STATES THAT IF SICK LEAVE EXCEEDS 3 CONSECUTIVE WORKDAYS AN
EMPLOYEE WOULD BE REQUIRED TO FURNISH REASONABLY ACCEPTABLE EVIDENCE TO
SUBSTANTIATE A REQUEST FOR APPROVAL THEREOF. THE FINAL VERSION OF THE
EXPECTATION PACKAGE INCORPORATED THE LANGUAGE OF THE MCA IN REGARD TO
FURNISHING EVIDENCE IN SUPPORT OF A REQUEST FOR APPROVAL OF SUCH SICK
LEAVE.
D. LEAVE WITHOUT PAY
THE EXPECTATION PACKAGE SETS FORTH THAT LEAVE WITHOUT PAY IS GRANTED
ONLY IN EXTREME CIRCUMSTANCES: (A) WHEN SICK LEAVE AND ANNUAL LEAVE ARE
EXHAUSTED; (B) WHEN AN EMPLOYEE IS ASKED TO BE OFF DUE TO LACK OF WORK.
AT THE MEETING ON FEBRUARY 24 HART ASKED WHETHER EMPLOYEES ARE REQUIRED
TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY IF THERE IS NO WORK.
MANAGEMENT REPLIED THAT IT COULD NOT INVOLUNTARILY PLACE SOMEONE ON
LEAVE. CALVIN LITWACK, CHIEF OF EMPLOYEE-MANAGEMENT RELATIONS FOR
RESPONDENT CENTER TESTIFIED THAT, UNDER THE ACCEPTED PRACTICE,
MANAGEMENT ENCOURAGED EMPLOYEES TO USE ANNUAL LEAVE WITHOUT PAY WHEN
WORK RAN OUT; THAT IF THEY DID NOT WANT TO USE IT, THE EMPLOYER WOULD
FURLOUGH THE EMPLOYEES. /11/
11. MOST OF THE TIME SPENT AT THE MEETING ON FEBRUARY 24 WAS DEVOTED
TO THE FIRST THREE SECTIONS OR PARTS OF THE EXPECTATIONS PACKAGE.
MANAGEMENT DEEMED THE PACKAGE TO BE A DELINEATION OF CURRENT PRACTICES,
AND IT DID NOT CONSIDER THE SECTIONS TO BE A CHANGE IN EITHER SUCH
PRACTICES OR A DEVIATION FROM THE MCA. THE UNION CONTINUED TO REMARK IT
WAS INTERESTED ONLY IN CLARIFICATION OF THE PACKAGE, AND IT WANTED TO
UNDERSTAND THE INTENT OF THE VARIOUS PROVISIONS. MANAGEMENT DID NOT ASK
HART TO SIGN OFF ON ANY CLAUSES, ALTHOUGH IT BELIEVED THAT, AFTER MAKING
CHANGES AS REQUESTED BY THE UNION, THERE WAS AN AGREEMENT AS TO THOSE
THREE PARTS. SOME INITIAL DISCUSSION TOOK PLACE RE PERFORMANCE
EXPECTATIONS, BUT THE PARTIES DECIDED TO DO 'HOMEWORK' ON ISEP AND
DISCUSS THIS PART OF THE PACKAGE AT THE NEXT MEETING.
12. THE PARTIES MET AGAIN ON FEBRUARY 27 WITH THE SAME CHIEF
SPOKESMEN AS IN THE PREVIOUS MEETING. DISCUSSION CENTERED AROUND THE
"PERFORMANCE EXPECTATIONS" PART OF THE PACKAGE AND THE ISEP TEST WHICH
MANAGEMENT UTILIZED TO EVALUATE PERFORMANCE OF EMPLOYEES. THIS PART SET
FORTH THE PERFORMANCE EXPECTATION, EXPRESSED IN PERCENTAGE OF
EFFECTIVENESS, WHICH EACH EMPLOYEE IS EXPECTED TO REACH AND MAINTAIN--
ALL RELATING TO QUANTITY AND QUALITY. THE PERCENTAGES ARE BASED ON A
COMPARISON OF AN INDIVIDUAL'S RATIO WITH THE AVERAGE RANK OF ALL OTHER
EMPLOYEES AT HIS GRADE LEVEL. PERFORMANCE AT 100% OR ABOVE IS DEEMED
FULLY ACCEPTABLE; 91%-99% IS SATISFACTORY, BUT BELOW AVERAGE AND
IMPROVEMENT WOULD BE EXPECTED; 85%-90% IS WELL BELOW ACCEPTABLE, AND
ONE WHO REMAINS THEREAT CANNOT EXPECT PROMOTION; BELOW 85% IS TOTALLY
UNACCEPTABLE. THE PACKAGE ALSO NOTED THAT EMPLOYEES ARE EXPECTED TO
REACH AT LEAST 85% OR HIGHER MORE THAN 50% OF THE TIME, THAT FAILURE TO
WORK AT A MINIMUM OF 85% MAY LEAD TO A WARNING OR SEPARATION.
MANAGEMENT SPOKE ABOUT RUNNING ISEP FREQUENTLY FOR EVALUATION
PURPOSES. HART COMMENTED THAT THE PEER GROUP AVERAGE WOULD BE PUSHED UP
HIGHER, RESULTING IN THE SEPARATION OF THOSE PREVIOUSLY DEEMED
ACCEPTABLE. HE STRESSED THE FACT THAT THOSE RATED AS "3'S" WERE ALWAYS
FULLY ACCEPTABLE; NOW THEY'RE COMPETITIVE AND THE EMPLOYER IS "COMING
ON TOO STRONG." LAYCOCK REMARKED THAT THOSE SEPARATED FROM A UNIT WILL
HAVE THEIR DATA SUPPRESSED. THIS WAS NOT DONE IN THE PAST, AND THE
UNION OBJECTED TO IT SINCE THOSE WHO HAD BEEN CONSIDERED ACCEPTABLE
WOULD BE DROPPED TO A LOWER CATEGORY. /12/ HART WAS IN DISAGREEMENT
WITH THE PERFORMANCE EXPECTATIONS AS LAID OUT IN THE PACKAGE, AS WELL AS
MANAGEMENT'S PLANS RE EVALUATION, AND AGREED TO SUBMIT UNION'S PROPOSALS
BY MARCH 3.
13. ON FEBRUARY 28 HART RECEIVED A REVISED PACKAGE OF THE
EXPECTATIONS FROM RESPONDENT CENTER. BY LETTER DATED MARCH 2 HART WROTE
LAYCOCK THAT UPON DISCUSSING THE MATTER WITH THE NATIONAL UNION OFFICE,
SERIOUS CONCERNS AROSE AS TO THE INTERFACING OF THE PROPOSALS WITH MCA.
THE UNION DESIRED FURTHER CLARIFICATION AND REQUESTED A MEETING BE HELD
ON MARCH 9 OR 10 TO DISCUSS SAME.
14. LAYCOCK REPLIED BY LETTER DATED MARCH 8 IN WHICH HE STATED THE
ISSUES HAD BEEN CLARIFIED AS A RESULT OF THE MEETINGS ON FEBRUARY 24 AND
27; THAT HE INTENDS TO ISSUE THE PACKAGE TO EMPLOYEES ON MARCH 20;
THAT THE ONLY ISSUES SETTLED RELATED TO ESTABLISHMENT OF PERFORMANCE
STANDARDS AND TIME PERIOD FOR EMPLOYEES TO OBTAIN SATISFACTORY LEVEL OF
PERFORMANCE. AS TO THESE, RESPONDENT AVERRED IT DEEMED THE SUBSTANCE OF
ITS PROPOSALS TO BE NON-NEGOTIABLE. LAYCOCK STATED, FURTHER, THAT
ALTHOUGH NO CLARIFICATION IS NEEDED, HE WOULD MEET WITH THE UNION ON
MARCH 9.
15. THE PARTIES MET FOR THE THIRD TIME ON MARCH 9. SPOKESMAN FOR
THE UNION AT THIS MEETING WAS EARL W. HOCKENBERRY, WHO WAS NATIONAL
FIELD REPRESENTATIVE AT THAT TIME. HOCKENBERRY EXPRESSED SERIOUS
CONCERN RE THE PACKAGE, AND RAISED QUESTIONS AS TO THE RIGHT OF
MANAGEMENT TO ISSUE THE DOCUMENT. HE MADE INQUIRIES AS TO VARIOUS OF
THE RULES LAID DOWN UNDER "WORK PRACTICES" AND THE PROVISIONS SET FORTH
UNDER THE OTHER TWO PARTS WHICH FOLLOWED. HOCKENBERRY STATED THAT SOME
OF THE LANGUAGE, AS THAT CONTAINED IN THE PROVISION RE "DISCLOSURE OF
INFORMATION" WAS AMBIGUOUS. HE CONTENDED THE SECTION RE "OVERTIME" WAS
A REWRITING OF THAT WORK CONDITION CONTRARY TO THE MCA; THAT THE
REQUIREMENT THAT AN EMPLOYEE CALL IN UNLESS DISABLED, CONFLICTED WITH
MCA; THAT AS TO "LEAVE" PROVISIONS PAGES 3 AND 4, RESPONDENT CENTER WAS
REPRODUCING ARTICLES FROM THE MCA, WHICH IT COULD NOT DO.
IN REPORT TO PERFORMANCE EXPECTATIONS UNDER THE PACKAGE, HOCKENBERRY
QUERIED AS TO HOW LAYCOCK ARRIVED AT THE 85%-90% EFFECTIVENESS FIGURE
AND THAT BELOW 85% WAS UNACCEPTABLE. MANAGEMENT INDICATES THIS WAS DONE
AFTER COMPARISONS WERE MADE WITH OTHER WORKERS; AND THAT LOW PRODUCERS
WOULD BE COUNSELED, AND, IF NO IMPROVEMENT WAS SHOWN, THEY WOULD BE
TERMINATED. LAYCOCK ADDED THAT THIS PART IS NONNEGOTIABLE; THAT HE HAD
THE RIGHT TO ADOPT PERCENTAGES. /13/ HOCKENBERRY STATED THAT HOW
EMPLOYEES WOULD BE EVALUATED WAS IN MCA (ARTICLE VI) AS PER NEGOTIATIONS
BETWEEN THE PARTIES; THAT THE "BELOW 85%" STANDARDS WAS NOT USED IN THE
WRITTEN AGREEMENT AND HE CONSIDERED IT UNSATISFACTORY.
16. PRIOR TO THE EXPECTATION PACKAGE, PERFORMANCE STANDARDS WERE
VAGUE AND NOT QUANTIFIED. THEY WERE HANDED OUT TO SET A MINIMUM
ACCEPTABLE STANDARD IN TERMS OF NUMBERS AND DOCUMENTS PER HOUR. NO
ATTEMPT, ACCORDING TO SAUNDERS, CHIEF OF THE BRANCH, WAS MADE TO TELL
EMPLOYER WHAT ACTION WOULD BE TAKEN IF STANDARDS WERE NOT MET. HE
CONCEDES THE IMPOSITION OF DISCIPLINARY ACTION IN THE PACKAGE
CONSTITUTED A CHANGE. WHILE SAUNDERS TESTIFIED THAT HART HAD PREVIOUSLY
AGREED THAT 60% PERFORMANCE BY EMPLOYER MIGHT WARRANT REASSIGNMENT, THE
PACKAGE NOW QUANTIFIED IT AT 85%.
17. AT THE CONCLUSION OF THE MARCH 9 MEETING HOCKENBERRY DECLARED
THE UNION WAS WILLING TO GIVE PROPOSALS BY MARCH 17 ON "WORK PRACTICES,"
1 THROUGH 7, AND "WORK RESPONSIBILITIES" 1, 2, 3, 4, 7. HE STATED THAT
NO. 5 ON PAGE 3 (OVERTIME) IS COVERED BY MCA; THAT AS TO NO. 6
(DISCLOSURE OF INFORMATION) HE COULD NOT GIVE A RESPONSE TILL HE KNOWS
WHERE IT CAME FROM; THAT THE PART DEALING WITH "LEAVE" ON PAGE 35 WAS
ALREADY COVERED BY MCA, AND THE UNION FELT NO OBLIGATION TO GIVE ANY
COUNTER PROPOSALS. IN REGARD TO THE LAST PART, "PERFORMANCE
EXPECTATIONS," THE UNION REPRESENTATIVE SAID THAT THE UNION WOULD LIKE
TO COMMENCE NEGOTIATIONS ON MARCH 27 AND SET UP GROUND RULES FOR
GUIDANCE. LAYCOCK SAID HE WOULD GIVE THE EMPLOYER'S ANSWER BY MARCH 13.
18. AFTER THE CLOSE OF THE MEETING ON MARCH 9, RESPONDENT CENTER
PROVIDED HOCKENBERRY WITH THE REGULATIONS GOVERNING THE PROVISIONS IN
THE PACKAGE DEALING WITH "DISCLOSURE OF INFORMATION."
19. A MARCH 13 LETTER FROM LAYCOCK TO HART STATED THAT THE
EXPECTATION PACKAGE WOULD BE ISSUED ON MARCH 20 TO THE DATA CONVERSION
BRANCH IN VIEW OF: (1) THE URGENCY OF IMPROVING PERFORMANCE AT THE
CENTER; (B) THE UNION'S REFUSAL TO SUBMIT WRITTEN PROPOSALS BY MARCH 3
AS IT AGREED TO DO AT THE FEBRUARY 27 MEETING; (C) THE UNION'S
STATEMENT IT WISHED TO NEGOTIATE THE PERFORMANCE STANDARDS ON MARCH 27.
LAYCOCK STATED HE HAD AMENDED ITEMS 1 AND 2 IN THE LEAVE PART OF THE
PACKAGE IN VIEW OF THE UNION'S CONCERN RE MCA.
20. BY LETTER DATED MARCH 16 HART WROTE LAYCOCK AND ATTACHED NTEU
PROPOSALS. HART STATED THAT THE UNION DEEMS ITEMS 1-7 UNDER "WORK
PRACTICES" AND ITEMS 1-4 UNDER "WORK RESPONSIBILITIES" TO BE NEGOTIABLE;
THAT ITEM 5 UNDER "WORK RESPONSIBILITIES" AND ITEMS 1-6 UNDER "LEAVE
AND THE PURPOSE INTENDED" TO BE COVERED BY MCA AND NOT TO BE IMPLEMENTED
BY RESPONDENT. FURTHER, HART WROTE THAT THE PURPOSES UNDER PERFORMANCE
EXPECTATIONS WERE FULLY NEGOTIABLE, AND HE SUGGESTED THE PARTIES MEET ON
MARCH 27 TO BEGIN SUCH NEGOTIATIONS.
21. IN THE COUNTERPROPOSALS SUBMITTED BY COMPLAINANTS, THE LATTER
SUGGESTED CHANGES IN ALL SEVEN SECTIONS UNDER "WORK PRACTICES," AS WELL
AS ALL SIX SECTIONS UNDER "WORK RESPONSIBILITIES." COMPLAINANTS COUNTER
PROPOSED THE DELETION OF ALL SECTIONS UNDER "LEAVE AND THE PURPOSE
INTENDED" /14/ AND THE ENTIRE PROVISION DEALING WITH "PERFORMANCE
EXPECTATIONS." /15/
22. THE THIRD EXPECTATION PACKAGE WAS DISTRIBUTED TO THE DATA
TRANSCRIBERS ON MARCH 20, AND THE PROVISIONS THEREIN WERE IMPLEMENTED ON
THAT DATE. FURTHER CHANGES WERE MADE IN SAID PACKAGE, AND THE REVISIONS
WERE MADE BY MANAGEMENT WITHOUT FURTHER CONSULTATION WITH THE UNION
REPRESENTATIVES.
23. BY LETTER DATED MAY 5 VINCENT CONNERY, NATIONAL PRESIDENT OF
COMPLAINANT NTEU NOTIFIED RESPONDENTS THAT COMPLAINANT NTEU AS WELL AS
COMPLAINANT NTEU CHAPTER 99 CHARGED THE EMPLOYER WITH HAVING VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER. ON JULY 5 RESPONDENTS HAD
DELIVERED TO CHAPTER 99 ITS DECISION DENYING THE COMMISSION OF ANY
UNFAIR LABOR PRACTICES. THE DECISION WAS ALSO MAILED ON THAT DATE TO
CONNERY, AS THE REPRESENTATIVE OF COMPLAINANT NTEU.
24. COMPLAINANTS FILED THE COMPLAINT HEREIN ON SEPTEMBER 8 WITHOUT
SUPPORTING DOCUMENTS. ON SEPTEMBER 12 THE DEPUTY AREA ADMINISTRATOR,
NEW YORK, REQUESTED THAT COMPLAINANTS SUBMIT SUPPORTING DATA IN RESPECT
TO THEIR COMPLAINT. BY LETTER DATED SEPTEMBER 15 COMPLAINANTS SENT
COPIES OF SUCH SUPPORTING DOCUMENTATION TO THE DEPUTY AREA
ADMINISTRATOR. ON THAT DATE THEY ALSO SERVED COPIES THEREOF AS WELL AS
THE COMPLAINANT HEREIN UPON RESPONDENTS. THE LATTER PARTY RECEIVED THIS
DATA ON SEPTEMBER 18 AND 19.
CONCLUSIONS
A PROCEDURAL ISSUE IS RAISED BY RESPONDENTS IN THEIR MOTION TO
DISMISS THE COMPLAINT. THEY CONTEND THAT (A) THE COMPLAINT WAS UNTIMELY
FILED UNDER SECTION 203.2(B)(2) OF THE REGULATIONS; (B) SUPPORTING
DOCUMENTATION WAS NOT FILED ALONG WITH THE COMPLAINT, AS REQUIRED BY
SECTION 203.3(B) OF THE REGULATIONS; (C) THE COMPLAINT AND SUCH
DOCUMENTATIONS WERE NOT SERVED IMMEDIATELY UPON RESPONDENTS.
(A) SECTION 203.2(B) REQUIRES THAT THE COMPLAINT BE FILED NO LATER
THAN 60 DAYS FROM THE DATE OF SERVICE OF RESPONDENT'S WRITTEN DECISION
ON THE UNFAIR LABOR PRACTICE CHARGE. IN THE INSTANT CASE RESPONDENTS
SERVED ITS RESPONSE BY HAND ON NTEU CHAPTER 99 ON JULY 5, 1979. IT
SERVED THE NATIONAL UNION BY MAIL ON THE SAME DATE. IT IS ALSO PROVIDED
UNDER SECTION 206.2 THAT WHENEVER A PARTY IS REQUIRED TO DO AN ACT
WITHIN A PRESCRIBED PERIOD AFTER THE SERVICE OF A PAPER UPON HIM BY
MAIL, 5 ADDITIONAL DAYS SHALL BE ADDED TO SUCH PRESCRIBED PERIOD.
THE COMPLAINT HEREIN WAS FILED ON THE 65TH DAY FOLLOWING SERVICE BY
MAIL UPON THE NATIONAL ORGANIZATION OF RESPONDENT'S RESPONSE TO THE
UNFAIR LABOR PRACTICE CHARGE. SINCE THE NATIONAL UNION WAS ONE OF THE
PARTIES FILING THE COMPLAINT, IT WAS ENTITLED TO THE ADDITIONAL TIME
ALLOTED UNDER SECTION 206.2. ACCORDINGLY, I FIND THAT THE COMPLAINT WAS
TIMELY FILED.
(B) UNDER 203.3(B) A COMPLAINANT MUST SUBMIT TO THE AREA DIRECTOR,
UPON FILING ITS COMPLAINT, SUPPORTING DOCUMENTS. SINCE COMPLAINANTS DID
NOT FURNISH DATA WHEN IT FILED THE COMPLAINT ON SEPTEMBER 8, THE AREA
OFFICE REQUESTED SUCH MATERIAL BE SUBMITTED. IN ANSWER THERETO THE
DOCUMENTS WERE FILED ON SEPTEMBER 15. I AGREE WITH THE COMPLAINANTS
HEREIN THAT THE REGULATION DOES NOT CALL FOR SIMULTANEOUS SUBMISSION OF
SUCH DATA, NOR DOES IT PROVIDE THAT THE COMPLAINT WOULD BE
JURISDICTIONALLY DEFECTIVE IF THE INFORMATION WAS NOT SO FURNISHED.
FURTHER, THE AREA DIRECTOR REQUESTED THE DATA SUBSEQUENT TO FILING THE
COMPLAINT AND COMPLAINANTS COMPLIED THEREWITH. IN SUCH A POSTURE, THEY
SHOULD NOT BE PENALIZED FOR SUBMITTING DOCUMENTATION IN ACCORDANCE WITH
SUCH REQUEST.
(C) IT IS REQUIRED BY SECTION 203.4(B) THAT THE COMPLAINT AND
SUPPORTING DOCUMENTS BE SERVED UPON RESPONDENTS. SINCE THIS WAS NOT
DONE BY COMPLAINANTS UNTIL SEPTEMBER 15, THE RESPONDENTS AGREE THAT THE
COMPLAINT SHOULD BE DISMISSED. I REJECT THEIR ARGUMENT AND FIND THE
CASES CITED IN SUPPORT OF THIS CONTENTION TO BE INAPPOSITE. WHILE
SERVICE UPON RESPONDENTS WAS SUBSEQUENT TO FILING OF THE COMPLAINT, IT
DOES NOT APPEAR THAT THIS FACTOR RENDERS THE COMPLAINT DEFECTIVE. THE
REGULATION DOES NOT SET FORTH A TIME PERIOD OR LIMITATION WITHIN WHICH
THE COMPLAINT AND SUPPORTING MATERIAL MUST BE SERVED UPON A RESPONDENT.
ACCORDINGLY, AND IN VIEW OF THE FOREGOING, THE MOTION TO DISMISS THE
COMPLAINT ON THE AFORESAID PROCEDURAL GROUNDS IS DENIED.
THE PRIMARY ISSUES FOR DETERMINATION HEREIN ARE: (A) WHETHER THE
EXPECTATIONS PACKAGE, WHICH WAS IMPLEMENTED BY MANAGEMENT ON MARCH 20,
1978, CHANGED PERSONNEL POLICIES, PRACTICES, OR MATTERS AFFECTING
WORKING CONDITIONS, WHICH HAD BEEN ESTABLISHED AT THE DATA CONVERSION
BRANCH THROUGH PAST PRACTICES OR UNDER THE MCA; (B) WHETHER, IN RESPECT
TO ANY SUCH CHANGES, RESPONDENTS WERE REQUIRED TO BARGAIN WITH THE
COLLECTIVE BARGAINING REPRESENTATIVE; (C) WHETHER RESPONDENTS FULFILLED
ANY SUCH OBLIGATION TO BARGAIN BY VIRTUE OF THE MEETINGS AND DISCUSSIONS
WHICH ENSUED BETWEEN THE PARTIES.
(A) IT IS WELL ESTABLISHED THAT IF MANAGEMENT UNILATERALLY CHANGES
TERMS AND CONDITIONS OF EMPLOYMENT INCLUDED WITHIN THE AMBIT OF SECTION
11(A) OF THE ORDER, IT VIOLATES AN OBLIGATION TO MEET AND CONFER IMPOSED
UNDER 19(A)(6) THEREOF. AN EMPLOYER MAY NOT ALTER PAST EMPLOYMENT
PRACTICES, CUSTOMARILY OBSERVED OR REDUCED TO WRITING, WITHOUT NOTIFYING
THE COLLECTIVE BARGAINING REPRESENTATIVE AND AFFORDING IT AN OPPORTUNITY
TO BARGAIN AS TO SUCH CHANGES. PENNSYLVANIA AIR NATIONAL GUARD, A/SLMR
NO. 866; U.S. ARMY ELECTRONICS COMMAND, FORT MAMMOUTH, NEW JERSEY,
A/SLMR NO. 653.
COMPLAINANTS INSIST THAT, IN ADDITION TO HAVING VARIED ACCEPTED
POLICIES CONCERNING EMPLOYMENT, THE PACKAGE CHANGED CONTRACTUAL TERMS.
THUS, IT ARGUES (1) THAT PROVISIONS UNDER THE PACKAGE DEALING WITH
EMERGENCY ABSENCES (PAGE 4) AND SCHEDULED LEAVE (PAGE 3) IS AT ODDS WITH
ARTICLE 16 OF MCA; (2) THAT THE OVERTIME CLAUSE (PAGE 3) IS AT ODDS
WITH ARTICLE 21, SECTION 2, THEREOF; THAT THE ANNUAL LEAVE CLAUSE (PAGE
4) CHANGED ARTICLE 14 OF MCA; AND THAT ARTICLE 6 OF THE WRITTEN
AGREEMENT HAS BEEN VARIED BY LANGUAGE IN THE PERFORMANCE EXPECTATIONS
(PAGES 6 AND 7) OF THE PACKAGE REFERRING TO THE DEFINITION OF A PEER
GROUP, AS WELL AS STATEMENTS RE COMPETITIVE PROMOTION AND THE
POSSIBILITY OF DISCIPLINARY ACTION IF IMPROVEMENT IN PERFORMANCE DOES
NOT RESULT. IN RESPECT TO RECORD KEEPING (PAGE 2), THE UNION INSISTS
THAT REQUIRING TIME SPENT IN PREPARING FORM 3081 BE CHARGED TO DIRECT
TIME, RATHER THAN OVERHEAD, WAS A CHANGE IN PAST PRACTICE.
(1) A REVIEW OF THE CLAUSES IN THE PACKAGE RE EMERGENCY ABSENCES AND
SCHEDULED LEAVE CONVINCES ME THAT, CONTRARY TO COMPLAINANT'S ASSERTION,
THESE PROVISIONS DO NOT CONFLICT WITH ARTICLE 16 OF MCA. THE LATTER
SECTION IS DEVOTED TO THE REQUIREMENTS IMPOSED UPON EMPLOYEES IN ORDER
TO OBTAIN APPROVAL OF SICK LEAVE TAKEN BY THEM. IT SPECIFIES THE
PARTICULAR NOTICE THAT A WORKER MUST GIVE TO HIS SUPERVISOR RE
UNANTICIPATED SICK LEAVE, AS WELL AS THE INSTANCES IN WHICH A MEDICAL
CERTIFICATE IS MANDATORY TO SUBSTANTIATE REQUESTS FOR SUCH LEAVE. THESE
CLAUSES IN THE PACKAGE DEALING WITH EMERGENCY ABSENCES AND SCHEDULED
LEAVE OF DATA CONVERSION EMPLOYEES ARE CONCERNED WITH A DIFFERENT
SUBJECT MATTER THAN THAT SET FORTH UNDER ARTICLE 16 OF MCA. NO
REFERENCE IS MADE IN EITHER PROVISION OF THE PACKAGE TO LEAVE WHICH MUST
BE TAKEN DUE TO AN EMPLOYEE'S ILLNESS. IT CANNOT BE CONCLUDED, IN MY
OPINION, THAT THE EMPLOYER INTENDED TO ESTABLISH NEW REGULATIONS RE SICK
LEAVE BY VIRTUE OF THESE TWO PROVISIONS IN THE PACKAGE. CONTRARIWISE, A
READING OF THESE TWO CLAUSES PERSUADES ME THAT THEY WERE REFERABLE TO
CERTAIN ABSENCES INDUCED THROUGH EMERGENCIES, AS WELL AS GENERAL LEAVE
TO BE ARRANGED IN ADVANCE BY EMPLOYEES.
THE RECORD DOES REFLECT, HOWEVER, THAT MANAGEMENT ADOPTED A TIME
LIMITATION WITH RESPECT TO RESPONSES BY THE EMPLOYER TO REQUESTS FOR
SCHEDULED LEAVE. IT DECLARED, UNDER SCHEDULE LEAVE, THAT REQUESTS FOR
SUCH LEAVE WOULD BE RESPONDED TO BY MANAGEMENT WITHIN THREE DAYS AND TO
REQUESTS FOR LEAVE WITHOUT PAY (LWOP) WITHIN TEN DAYS; THAT UNLESS
THERE ARE EXTENUATING CIRCUMSTANCES LWOP WOULD NOT BE APPROVED FOR
VACATION PURPOSES.
AT THE FEBRUARY 24 MEETING THE UNION DID, IN FACT, RAISE THE POINT
THAT THE INSTANT PACKAGE MADE NO REFERENCE TO TIMELY RESPONSES TO
REQUESTS FOR SCHEDULED LEAVE. FURTHER, PRIOR TO THIS PERIOD NO PRACTICE
EXISTED WHEREBY RESPONDENT CENTER RESPONDED TO REQUESTS FOR SCHEDULED
LEAVE AND LWOP WITHIN THREE AND TEN DAYS RESPECTIVELY. WHILE SOME
MENTION WAS MADE OF THESE PARTICULAR TIME LIMITATIONS AT THE AFORESAID
MEETING, I AM PERSUADED THAT NO AGREEMENT WAS REACHED THEREAT AS TO WHEN
MANAGEMENT WOULD RESPOND TO REQUESTS FOR EITHER LEAVE. THUS, LITWACK
TESTIFIED THAT SUCH TIME TARGETS, WHICH ORIGINATED WITH THE EMPLOYER,
CONSTITUTED ITS LANGUAGE AND WERE WRITTEN IN THE PACKAGE BY VIRTUE OF
THE UNION'S CONCERN THAT TIMELY RESPONSES BE MADE. NO SUBSEQUENT
DISCUSSION WAS HAD IN REGARD THERETO. MOREOVER, HART TESTIFIED CREDIBLY
THAT LWOP WAS COMMONLY GRANTED, IN THE PAST, FOR VACATION PURPOSES
WITHOUT THE NEED TO ESTABLISH EXTENUATING CIRCUMSTANCES, AND NO
PROBATIVE EVIDENCE SUPPORTS A CONTRARY FINDING.
ACCORDINGLY, I AM CONSTRAINED TO FIND THAT THE CLAUSES REGARDING TIME
LIMITATIONS FOR RESPONDING TO REQUESTS FOR SCHEDULED LEAVE AND LWOP, AS
WELL AS THE CONDITIONAL APPROVAL OF LWOP FOR VACATION PURPOSES, WERE
UNILATERAL CHANGES INSTITUTED BY RESPONDENTS. UNDER THE APPLICABLE LAW,
AS HERETOFORE ENUNCIATED, MANAGEMENT HEREIN WAS OBLIGED TO MEET AND
CONFER IN REGARD THERETO BEFORE THEIR ADOPTION. DESPITE THE SURFACE
DISCUSSION AT THE FEBRUARY 24 MEETING CONCERNING THE NEED FOR TIMELY
RESPONSES, I DO NOT BELIEVE THE EMPLOYER NEGOTIATED THESE PARTICULAR
MATTERS WITH THE UNION. THUS, THE UNILATERAL IMPLEMENTATIONS OF SUCH
PROVISIONS ON MARCH 20 CONSTITUTED A REFUSAL TO BARGAIN UNDER SECTION
19(A)(6) OF THE ORDER.
(2) THE PACKAGE PROVISIONS RE OVERTIME MERELY STATES THAT EMPLOYEES
ARE EXPECTED TO WORK OVERTIME IF IT BECOMES NECESSARY, AND THAT PAYMENT
FOR SUCH WORK IS MADE BEYOND 8 HOURS IN ONE DAY OR 40 HOURS IN ONE WEEK.
ARTICLE 21 OF MCA IS SOMEWHAT MORE EXTENSIVE. IT DECLARES THAT
OVERTIME WILL BE DISTRIBUTED EQUALLY, RECITES WHICH EMPLOYEES WILL
RECEIVE FIRST CONSIDERATIONS FOR SUCH WORK, AND REFERS TO THE FACT THAT
AN EMPLOYEE WILL BE RELEASED FROM OVERTIME ASSIGNMENT IF A FULLY
QUALIFIED REPLACEMENT IS AVAILABLE AND WILLING TO WORK.
IN VIEW OF THE FACT THAT THE PACKAGE MAKES NO REFERENCE TO THE
DISTRIBUTION OF OVERTIME OR A RELEASE THEREFROM, COMPLAINANTS ARGUE IT
CONFLICTS WITH THE MCA PROVISION IN REGARD TO OVERTIME. THE UNION
CONTINUALLY ADVERTS TO THE FACT THAT THE COVERING MEMO TO THE PACKAGE
AVERS THAT MANAGEMENT ATTEMPTED TO MAKE THE EXPECTATIONS AS CLEAR AS
POSSIBLE, SO THAT THE EMPLOYEES WOULD HAVE FULL KNOWLEDGE OF WHAT WAS
EXPECTED OF THEM. THE OVERTIME CLAUSE, URGES THE COMPLAINANTS, DOES NOT
NOT CONVEY SUCH FULL KNOWLEDGE.
WHILE I AGREE THAT THE OVERTIME CLAUSE IN THE PACKAGE DOES NOT
CONTAIN ALL THE PROVISOS IN ARTICLE 21 OF MCA, I DO NOT CONCLUDE THAT,
BY SUCH OMISSION, RESPONDENTS INTENDED TO, OR DID, CHANGE THE
CONTRACTUAL PROVISIONS RE OVERTIME. THE RECITATION IN THE PACKAGE IS A
GENERAL STATEMENT THAT EMPLOYEES MAY BE EXPECTED TO WORK OVERTIME
BEYOND
8 HOURS A DAY OR 40 HOURS PER WEEK. IT DOES NOT PURPORT TO BE A
SUBSTITUTE FOR ARTICLE 21, OR TO SUPPLEMENT THE LANGUAGE IN THE WRITTEN
AGREEMENT, BUT APPEARS TO BE SOLELY A REMINDER THAT OVERTIME WILL BE
OCCASIONED IF THE NEED SHOULD ARISE. NOR DO I SUBSCRIBE TO THE VIEW
THAT BECAUSE THE EMPLOYER STATED IT WANTED EMPLOYEES TO HAVE FULL
KNOWLEDGE OF ITS EXPECTATIONS, THE FAILURE TO MENTION IN THE PACKAGE THE
COMPLETE PROVISION IN ARTICLE 21 IS EQUITABLE WITH A CHANGE THEREOF. AN
ATTEMPT TO BRING TO THE WORKERS' ATTENTION VARIOUS RESPONSIBILITIES
DURING THEIR EMPLOYMENT DOES NOT REQUIRE, IN MY OPINION, THAT THE
EMPLOYER SET THEM FORTH IN DETAIL. BY USING THE TERM "FULL KNOWLEDGE"
IN ITS COVER SHEET TO THE PACKAGE, MANAGEMENT IS NOT OBLIGED TO
DUPLICATE CONTRACTUAL LANGUAGE. I FIND NO SUPPORT FOR COMPLAINANTS'
VIEW IN THIS REGARD, AND THEREFORE I CONCLUDE THAT THIS PROVISION RE
OVERTIME IN THE PACKAGE DID NOT CHANGE THE PAST PRACTICE AS SET FORTH IN
ARTICLE 21 OF MCA.
(3) THE FINAL PACKAGE ALSO CONTAINS A CLAUSE REFERRING TO THE
GRANTING OF ANNUAL LEAVE FOR "VACATIONS, PERSONAL BUSINESS, CARING FOR
FAMILIES, ETC." IT ALSO PROVIDES THAT AN APPROVED ABSENCE, OTHERWISE
CHANGEABLE TO SICK LEAVE, MAY BE CHANGED TO ANNUAL LEAVE IF APPROVED;
THAT REQUESTS FOR LEAVE SHOULD BE HELD TO A MINIMUM DURING THE PEAK
PROCESSING SEASON.
COMPLAINANTS MAINTAIN THAT THIS PROVISION FLIES IN THE FACE OF
ARTICLE 14 OF MCA WHICH SETS FORTH A COMPREHENSIVE SCHEME RE ANNUAL
LEAVE. THEY STRESS THE FACT THAT THE PACKAGE FAILS TO MENTION MANY OF
THE TERMS LISTED IN THE WRITTEN AGREEMENT. MOREOVER, IT IS ARGUED THAT
THE MCA MAKES NO REFERENCE TO A PEAK SEASON, AND PAST PRACTICE DID NOT
REQUIRE THAT LEAVE BE MINIMIZED AT SUCH A PERIOD.
CONTRARY TO THE UNION'S ARGUMENT IN THIS REGARD, I DO NOT DEEM THIS
PROVISION IN THE PACKAGE TO BE A CHANGE IN ARTICLE 14 OF THE CONTRACT.
AS I VIEW IT, BASED ON THE ENTIRE RECORD, THIS CLAUSE WAS A GENERAL
NOTIFICATION TO EMPLOYEES THAT ANNUAL LEAVE WOULD BE GRANTED FOR
SPECIFIED REASONS. THE PACKAGE STATEMENT WAS, IN MY OPINION, MERELY AN
ATTEMPT TO CALL SUCH LEAVE TO THE ATTENTION OF THE WORKERS AT THE
BRANCH. IT DOES NOT PURPORT TO OUTLINE ALL CIRCUMSTANCES UNDER WHICH
ANNUAL LEAVE IS GRANTED AND THE REQUIREMENTS THEREFOR. COMPLAINANTS,
HOWEVER, ASSERT THAT IT IS JUST SUCH OMISSION WHICH RENDERS THE
PROVISION FAULTY AND THUS CONSTITUTES A BLATANT CHANGE IN THE MCA
SECTION DEALING WITH THIS SUBJECT. I DO NOT AGREE. FAILURE TO RECITE
ALL CONTINGENCIES UPON WHICH ANNUAL LEAVE IS BASED DOES NOT REQUIRE A
FINDING THAT THE PROVISION CONTRADICTED OR VARIED THE CONTRACT. AS A
GENERAL STATEMENT RE ANNUAL LEAVE, IT COULD NOT BE EXPECTED TO CONTAIN
COMPLETE DETAILS AS TO THIS EMPLOYMENT CONDITION. WHILE THE UNION AGAIN
RELIES UPON THE EMPLOYER'S ASSERTION THAT THE COVER MEMO DECLARED THAT
MANAGEMENT DESIRED THE EMPLOYEES HAVE FULL KNOWLEDGE OF EXPECTATIONS, I
CANNOT CONCLUDE SUCH STATEMENT JUSTIFIES THE INFERENCE THAT THE PACKAGE
PROVISION WAS MEANT TO SUPPLEMENT THE CONTRACTUAL PROVISIONS.
FURTHER, MANAGEMENT'S EXHORTATION TO EMPLOYEES TO HOLD REQUESTS FOR
LEAVE TO A MINIMUM DURING PEAK PROCESSING SEASON DOES NOT CONSTITUTE AN
EFFORT TO CHANGE PAST PRACTICE IN THIS REGARD. I VIEW THIS PLEA AS AN
ATTEMPT TO SOLICIT ASSISTANCE FROM EMPLOYEES IN SCHEDULING ANNUAL LEAVE
DURING THE EMPLOYER'S BUSY SEASON. IT DOES NOT APPEAR THAT ANNUAL LEAVE
WILL BE DENIED DURING SUCH SEASON, NOR THAT ANY PARTICULAR RESTRICTION
IS BEING PLACED UPON REQUESTS FOR SUCH LEAVE.
IN VIEW OF THE FOREGOING, I FIND AND CONCLUDE THAT THE CLAUSE IN THE
PACKAGE RE ANNUAL LEAVE NEITHER CONFLICTS WITH NOR CHANGES ARTICLE 14 OF
MCA; AND THAT NONE OF THE RECITALS THEREIN VARY PAST PRACTICES
CONCERNING THE APPLICATION FOR, AND APPROVAL OF, ANNUAL LEAVE AT THE
DATA CONVERSION BRANCH.
(4) IN RESPECT TO THE RECORD KEEPING CLAUSE IN THE PACKAGE, I HAVE
HERETOFORE FOUND THAT THE PRIOR PRACTICE WAS TO CHARGE TIME SPENT IN
PREPARING FORM 3081 TO DIRECT TIME EXCEPT WHERE THE VOLUMINOUS RECORDS
WERE TO BE COMPLETED. THIS WAS IN ACCORD WITH THE HANDBOOK PROVISO.
WHERE UNUSUAL CIRCUMSTANCES PREVAILED, TIME SPENT THEREON BECAME AN
OVERHEAD EXPENSE. THE RECORD DOES NOT, IN MY OPINION, CONTAIN A FINDING
OF A CONTRARY PROCEDURE NOR AN AGREEMENT TO CHARGE SUCH PREPARATION TO
OVERHEAD. THEREFORE, I CONCLUDE THAT THIS PROVISION IN THE PACKAGE IS
NOT AT VARIANCE WITH PRIOR PRACTICE, AND THE IMPLEMENTATION THEREOF WAS
NOT A UNILATERAL CHANGE SO AS TO BE VIOLATIVE OF THE ORDER.
(5) IT IS CONTENDED BY COMPLAINANTS THAT REFERENCES IN THE PACKAGE,
UNDER PERFORMANCE EXPECTATIONS, TO PEER GROUP COMPARISONS AND SUCCESS IN
GRIEVING PROMOTIONS CONSTITUTED A CHANGE IN ARTICLE 6 OF MCA. THE
LATTER IS A RATHER DETAILED DESCRIPTION OF THE METHODS AND PROCEDURES
UTILIZED BY THE EMPLOYER IN FILLING VACANCIES BY PROMOTION, REASSIGNMENT
OR TRANSFER. IT SETS FORTH A RATING SYSTEM FOR THE EVALUATION OF
EMPLOYEES BOTH QUANTITATIVELY AND QUALITATIVELY, WITH RATINGS ON A SCALE
OF 5 TO 1 AS DESCRIBED HEREIN. RESPONDENTS INSIST THAT THE MEASURED
PROMOTION EVALUATION SYSTEM UNDER THE MCA DID NOT ESTABLISH MINIMAL
STANDARDS FOR ACCEPTABLE PERFORMANCE, AND THAT THESE ARE DIFFERENT
PROCEDURES.
UPON A READING OF BOTH SYSTEMS, AS ENUNCIATED IN THE PACKAGE AND
ARTICLE 6 OF THE CONTRACT, I AM PERSUADED THAT THE PERFORMANCE
EXPECTATIONS WAS NOT DESIGNATED TO SET UP NEW STANDARDS FOR PROMOTIONS
OR THE FILING OF VACANCIES. IT OUTLINES EXPECTATIONS EXPRESSED AS A
PERCENTAGE OF EFFECTIVENESS, AND THE PERCENTAGES ARE BASED ON A
COMPARISON OF AN EMPLOYEE'S RATE WITH THE AVERAGE RATE OF ALL OTHER
EMPLOYEES IN HIS GRADE LEVEL. I AGREE WITH RESPONDENTS THAT THIS
PERFORMANCE STANDARD DIFFERS FROM THE PROCEDURE ESTABLISHED IN THE
AGREEMENT FOR COMPETITIVE PROMOTIONS. RECORD FACTS DISCLOSE THAT
MANAGEMENT SOUGHT TO QUANTIFY ACCEPTABLE PERFORMANCE, IN TERMS OF
PERCENTAGES, AND TO MEASURE SUCH PERCENTAGE FIGURES BY A COMPARATIVE
SYSTEM. THE EMPHASIS, AS INDICATED UNDER THE "PROGRESSION SCALE," IS ON
REQUIRING EMPLOYEES TO PERFORM AT LEVELS BETWEEN 91%-100% OR ABOVE; AND
THE WORKER IS EXPECTED TO PERFORM AT THE 100% LEVEL BY THE THIRD WEEK OF
HIS PERFORMANCE. THIS SYSTEM DOES NOT PURPORT TO CHANGE THE EVALUATION
RATING SYSTEM IN ARTICLE 6 OF MCA, NOR DOES IT, IN MY OPINION, ALTER THE
COMPETITIVE PROMOTION PROCEDURE WHICH IS BASED ON THE EVALUATION RATINGS
STATED IN THE AGREEMENT.
WHILE THERE ARE REFERENCES TO THE UNLIKELIHOOD OF PROMOTION IN
INSTANCES WHERE AN EMPLOYEE PERFORMS AT A LEVEL OF 85%-99%, I AGREE WITH
RESPONDENTS THAT SUCH DECLARATIONS DO NOT REPRESENT AN ATTEMPT TO
CHANGE
THE COMPETITIVE PROMOTION SYSTEM IN THE MCA. MANAGEMENT HAS STATED, IN
EFFECT, THAT A PERFORMANCE BY AN EMPLOYEE BELOW THE LEVEL OF
ACCEPTABILITY, OR WITHIN THE AVERAGE RANGE PERCENTAGEWISE, WOULD
PRECLUDE A PROMOTION. APART FROM WHETHER THE PROGRESSION SCALE SHOULD
HAVE BEEN DISCUSSED WITH COMPLAINANTS AS A NEGOTIABLE SUBJECT-- WHICH
WILL BE DISCUSSED INFRA-- IT DOES NOT ABROGATE OR ALTER THE COMPETITIVE
PROMOTION PROCEDURE AND ITS RATING SYSTEM DELINEATED UNDER ARTICLE 6 OF
MCA. /16/
NOTWITHSTANDING THE FACT THAT THE PROGRESSION SCALE AND THE INTENDED
DISCIPLINARY ACTION SET FORTH IN THE FOURTH PART OF THE PACKAGE DID NOT
CONFLICT WITH THE MCA, I AM CONSTRAINED TO FIND THAT IT CONSTITUTED A
CHANGE IN THE EVALUATION OF EMPLOYEES AS TO ACCEPTABLE LEVELS OF
PERFORMANCE. RECORD FACTS REFLECTS THAT MANAGEMENT HAD NOT PREVIOUSLY
QUANTIFIED SUCH LEVELS. IT HAD UTILIZED THE STATISTICS GATHERED AS TO
EMPLOYEES' PRODUCTION FOR OTHER EVALUATIONS, AS PROMOTIONS,
FURLOUGH-RECALL, AND REASSIGNMENTS. BUT AS TO SATISFACTORY PERFORMANCE,
AND RESULTANT ACTIONS IF THE LEVELS WERE NOT MET, NO SUCH PERCENTAGE
SYSTEM HAD BEEN ADOPTED. THIS IS SUPPORTED BY THE TESTIMONY OF SAUNDERS
WHO STATED "THERE HAD NOT BEEN ANY QUANTIFIABLE FIGURES SET." HE
TESTIFIED, FURTHER, THAT IN REASSIGNING TRANSCRIBERS BOTH PARTIES NEED A
FIGURE OF 50% AS AN AGREEABLE POINT OF PERFORMANCE. THE PROGRESSION
SCALE IN THE PACKAGE STRUCTURES PERCENTAGE LEVELS OF PERFORMANCE. IT
DECLARES WHETHER PERFORMANCE IS ACCEPTABLE OR SATISFACTORY AT EACH
PERCENTAGE LEVEL. NO SUCH PERFORMANCE SCALE HAD BEEN ISSUED FOR
EMPLOYEES PREVIOUSLY.
MOREOVER, THE PERFORMANCE EXPECTATIONS ADOPTED CERTAIN STANDARDS
WHICH THE EMPLOYER MANDATED IN REGARD TO ACCEPTABILITY OF PERFORMANCE.
IT WAS STATED IN THE PACKAGE THAT IN ORDER TO BE DEEMED AS HAVING
MAINTAINED A SATISFACTORY LEVEL, AN EMPLOYEE MUST REACH THE MINIMUM
LEVEL OF 85% WITHIN THE THREE WEEKS PROGRESSION SCALE. IT WAS ALSO
PROVIDED THEREUNDER THAT DISCIPLINARY ACTION WOULD RESULT IF IMPROVEMENT
DID NOT OCCUR AS REQUIRED. THOSE DIRECTIVES AND ADMONITIONS WERE NOT IN
FORCE AND EFFECT PRIOR TO MARCH 20.
B. RESPONDENTS' OBLIGATION TO BARGAIN RE THE CHANGES IN
THE PACKAGE
IN RESPECT TO THOSE PROVISIONS IN THE PACKAGE WHICH WERE SIMPLY A
CODIFICATION OF PAST PRACTICES, IT SEEMS CLEAR THAT NO OBLIGATION IS
IMPOSED UPON RESPONDENTS TO MEET AND CONFER THEREON. IN NORTH-ATLANTIC
REGION, IRS, A/SLMR NO. 1129, IT WAS HAD THAT THE EMPLOYER DID NOT
VIOLATE 19(A)(6) OF THE ORDER BY REFUSING TO NEGOTIATE ON MONITORING
CERTAIN CONFERENCES SINCE EACH ACTION WAS JUST A CONFIRMATION OF PAST
PRACTICES. THE PRINCIPLE ENUNCIATED IN THE CITED CASE IS APPLICABLE TO
THE CASE AT BAR. EXCEPT FOR THE PARTICULAR PROVISION DEALING WITH
SCHEDULED LEAVE AND THOSE PROVISIONS CONCERNING PERFORMANCE
EXPECTATIONS
HEREIN BEFORE MENTIONED, ALL OTHER ITEMS DEALT WITH PAST PRACTICES OR
POLICIES EXISTENT AT THE CENTER. THEY NEITHER CONFLICTED WITH THE MCA
NOR ALTERED SUCH POLICIES OR PRACTICES, BUT WERE, IN EFFECT, A
RECITATION THEREOF. FURTHER, TO THE EXTENT THAT ANY SUCH PROVISIONS
CONSTITUTED PERMISSIVE SUBJECTS FOR BARGAINING, THOSE MATTERS DID NOT
BECOME MANDATORY SUBJECTS MERELY BECAUSE THE UNION AND THE EMPLOYER
HEREIN DISCUSSED THEM DURING THE MEETINGS IN FEBRUARY AND MARCH, 1978.
SEE 63RD AIR BASE GROUP, U.S. AIR FORCE, NARTON AIR FORCE BASE,
CALIFORNIA, A/SLMR NO. 834.
ACCORDINGLY, I CONCLUDE THAT RESPONDENTS WERE OBLIGED TO MEET AND
CONFER SOLELY ON THE CHANGES MADE IN THE PACKAGE UNDER "SCHEDULED LEAVE"
AND "PERFORMANCE EXPECTATIONS;" THAT AS TO ALL OTHER PROVISIONS IN THE
PACKAGE, WHICH I HAVE FOUND MERELY CODIFIED PAST POLICIES, PRACTICES AND
CONDITIONS OBSERVED AT THE CENTER, NO SUCH OBLIGATION IS IMPOSED UPON
RESPONDENT.
C. RESPONDENTS' FULFILLMENT OF ITS DUTY TO BARGAIN WITH
THE UNION
RESPONDENTS CONTEND THAT, AS TO THE PERFORMANCE EXPECTATIONS, THE
DECISION TO SET THEM FORTH IN THE PACKAGE WAS RESERVED TO THE AGENCY
UNDER SECTION 11(B) AND 12(B) OF THE ORDER. THE EMPLOYER HEREIN
MAINTAINS THAT IT WAS NOT REQUIRED TO NEGOTIATE ON THIS FOURTH PART OF
THE PACKAGE AS A MANDATORY SUBJECT UNDER SECTION 11(A) OF THE ORDER.
SEVERAL CASES DECIDED IN THE PUBLIC SECTS WOULD BELIEVE THIS
CONTENTION. IN U.S. DEPARTMENT OF THE TREASURY, IRS, CLEVELAND, OHIO,
A/SLMR NO. 972 THE EMPLOYER IMPLEMENTED A WORK MEASUREMENT PROGRAM
INVOLVING THE FORMULATION OF EVALUATION CRITERIA. THE ADMINISTRATION
LAW JUDGE FOUND THE PROGRAM WAS NEGOTIABLE. /17/ AS IN THE CASE AT BAR,
STATISTICS TO BE GATHERED WOULD BE USED TO STRIKE TIME AVERAGES FOR
VARIOUS ACTIVITIES, AND EMPLOYEE PERFORMANCE WOULD BE MEASURED AGAINST
THESE FORMULATED AVERAGES.
THE FEDERAL LABOR RELATIONS COUNCIL CONSIDERED A NEGOTIABILITY CASE
INVOLVING A RELATED ISSUE IN PATENT OFFICE PROFESSIONAL ASSOCIATION AND
U.S. PATENT OFFICE, WASHINGTON, D.C., FLRC NO. 75A-13. MANAGEMENT HAD
SET UP PRODUCTION GOALS AGAINST WHICH IT WOULD EVALUATE INDIVIDUAL
PRODUCTIVITY. THE UNION MADE CERTAIN PROPOSALS AS TO SUCH GOALS, BUT
THE EMPLOYER INSISTED THEY WERE NOT NEGOTIABLE. IT WAS HELD THAT SUCH
PROPOSALS DID NOT VIOLATE MANAGEMENT'S RESERVED RIGHTS UNDER 12(B) OF
THE ORDER, AND THAT THE SAME WAS PROPERLY SUBJECT TO NEGOTIATIONS UNDER
11(A).
IN MY OPINION THE PERFORMANCE EVALUATION SYSTEM HEREIN IS SIMILAR TO
THE PROGRAMS REFERRED TO IN THE CITED CASES. EVALUATING ACCEPTABLE
LEVELS OF PERFORMANCE BY MEANS OF STATISTICAL DATA, WHICH YIELDS
PERCENTAGES OF EXPECTATIONS, IS A MEASURE OF INDIVIDUAL PRODUCTIVITY.
AS SUCH, IT IS ENCOMPASSED BY 11(A) OF THE ORDER AND DISTINGUISHABLE
FROM METHODS OF QUESTION WHICH ARE WITHIN THE PROVISION OF 12(B)
THEREOF. CF. 78TH DIVISION (TREASURY) KILMER USAR CENTER, EDISON, NEW
JERSEY, 1 FLRA 97. ACCORDINGLY, I REJECT RESPONDENT'S ARGUMENT THAT THE
PERFORMANCE EXPECTATIONS IN THIS PACKAGE WERE A RESERVED RIGHT OF THE
AGENCY UNDER THE ORDER.
IT IS FURTHER CONTENDED BY RESPONDENTS THAT ASSUMING ARGUENDO IT WAS
A NEGOTIABLE ISSUE, THE PARTIES ENGAGED IN BARGAINING WITH RESPECT TO
THESE EXPECTATIONS. I DO NOT AGREE. HOCKENBERRY DID ASK QUESTIONS RE
THIS PART OF THE PACKAGE, BUT LAYCOCK REPEATEDLY STATED IT WAS NOT A
NEGOTIABLE MATTER. WHEN HOCKENBERRY INDICATED AT THE MARCH 9 MEETING
THAT HE WOULD LIKE TO MEET ON MARCH 27 TO DISCUSS THE PERFORMANCE
EXPECTATIONS, LAYCOCK REPLIED THAT HE WOULD CONSIDER THE UNION'S
PROPOSAL. HOWEVER, THE EMPLOYER REFUSED TO MEET AGAIN FOR THIS PURPOSE
AND IMPLEMENTED THE PACKAGE PRIOR TO MARCH 27. THE FOREGOING CONVINCES
ME THAT RESPONDENTS WERE NOT OF A MIND TO BARGAIN RE THIS PART OF THE
PACKAGE, AND THE LIMITED DISCUSSIONS WITH RESPECT THERETO ON MARCH 9 WAS
NOT, IN ANY SENSE, A "GIVE AND TAKE" AS TO THESE PROVISIONS. RECORD
FACTS DO NOT REFLECT THAT ACTUAL NEGOTIATIONS COVERING THIS EVALUATION
SYSTEM OR PROGRAM DID OCCUR. THUS, THE IMPLEMENTATION THEREOF, PRIOR TO
BARGAINING WITH THE COLLECTIVE BARGAINING REPRESENTATIVE, WAS VIOLATIVE
OF THE ORDER.
IN SUM, I CONCLUDE THAT RESPONDENTS REFUSED TO MEET AND CONFER WITH
COMPLAINANT NTEU CHAPTER 99 BY UNILATERALLY ISSUING AND IMPLEMENTING ON
MARCH 20, 1978 ITS EXPECTATIONS FOR THE DATA CONVERSION BRANCH AT
BROOKHAVEN SERVICE CENTER WHICH, CONTRARY TO PAST PRACTICES, RESULTED
IN: (A) FIXED TIME PERIODS WITHIN WHICH MANAGEMENT WOULD RESPOND TO
REQUESTS FOR SCHEDULED LEAVE; (B) REFUSING TO APPROVE LEAVE WITHOUT PAY
FOR VACATION PURPOSES EXCEPT IN UNUSUAL CIRCUMSTANCES; (C) SETTING UP A
PROGRESSION SCALE OF PERFORMANCE EXPECTATIONS, IN TERMS OF PERCENTAGES,
WITH ATTENDANT REQUIREMENTS TO BE DESIGNATED AS A SATISFACTORY EMPLOYEE
AND DISCIPLINARY STANDARDS TO BE FOLLOWED-- ALL IN DEROGATION OF ITS
DUTY TO BARGAIN IN GOOD FAITH AND IN VIOLATION OF 19(A)(1) AND (6) OF
THE ORDER.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENTS HAVE ENGAGED IN CONDUCT WHICH IS
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER, I RECOMMEND THE
FEDERAL LABOR RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER DESIGNED TO
EFFECTUATE THE PURPOSES OF EXECUTIVE ORDER 11491, AS AMENDED.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS AND SECTION 2400.2 OF THE
TRANSITION RULES AND REGULATIONS, THE FEDERAL LABOR RELATIONS AUTHORITY
ORDERS THE INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER, IRS,
SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING TIME PERIODS FOR MANAGEMENT TO RESPOND TO RESPOND TO
REQUESTS FOR APPROVAL OF SCHEDULED LEAVE, OR REQUIRING THAT EXTENUATING
CIRCUMSTANCES BE SHOWN BY EMPLOYEES BEFORE MANAGEMENT WOULD APPROVE
LEAVE WITHOUT PAY FOR VACATION PURPOSES, OR ANY OTHER TERM OR CONDITION
OF EMPLOYMENT WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING
NEGOTIATIONS, WITHOUT NOTIFYING NATIONAL TREASURY EMPLOYEES UNION AND
NTEU CHAPTER 99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS
EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND
CONFER THEREON.
(B) INSTITUTING A PERFORMANCE EVALUATION SYSTEM, USING STATISTICAL
AVERAGES OR PERCENTAGES, TO MEASURE THE ACCEPTABLE LEVELS OF COMPETENCE
OF ITS EMPLOYEES, WITH ATTENDANT DISCIPLINARY ACTION IF SPECIFIED
STANDARDS ARE NOT MET, OR ANY OTHER TERM OR CONDITION OF EMPLOYMENT,
WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING NEGOTIATIONS, WITHOUT
NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES BY WHICH
STATISTICS WOULD BE USED TO EVALUATE SUCH ACCEPTABLE LEVELS OF
COMPETENCE, AND ON THE IMPACT AND IMPLEMENTATION OF SUCH EVALUATIONS
SYSTEM.
(C) REFUSING THE MEET AND CONFER IN GOOD FAITH WITH THE NATIONAL
TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, WITH RESPECT TO: RESPONSES BY MANAGEMENT, WITHIN
CERTAIN TIME PERIODS, TO REQUESTS BY EMPLOYEES FOR APPROVAL OF SCHEDULED
LEAVE; APPROVAL BY MANAGEMENT OF LEAVE WITHOUT PAY FOR VACATION
PURPOSES; ANY PERFORMANCE EVALUATION SYSTEM BY MANAGEMENT UTILIZING
STATISTICAL AVERAGES OR PERCENTAGES TO MEASURE ACCEPTABLE LEVELS OF
COMPETENCE OF ITS EMPLOYEES, WITH ATTENDANT DISCIPLINARY ACTION IF
EMPLOYEES FAIL TO MEET SPECIFIED STANDARDS.
(D) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) RESCIND THAT PART OF ITS EXPECTATIONS PACKAGE ISSUED AND
IMPLEMENTED ON MARCH 20, 1978 WHICH PROVIDES THAT: REQUESTS FOR
SCHEDULED LEAVE WILL BE RESPONDED TO BY MANAGEMENT WITHIN THREE DAYS AND
LEAVE WITHOUT PAY WITHIN 10 DAYS UNLESS THERE ARE EXTENUATING
CIRCUMSTANCES; LEAVE WITHOUT PAY WILL NOT BE APPROVED FOR VACATION
PURPOSES UNLESS THERE ARE EXTENUATING CIRCUMSTANCES; A PERFORMANCE
EVALUATION SYSTEM, USING STATISTICAL AVERAGES OR PERCENTAGES, WILL
MEASURE ACCEPTABLE LEVELS OF COMPETENCE OF EMPLOYEES, WITH ATTENDANT
DISCIPLINARY ACTION IF SPECIFIED STANDARDS ARE NOT MET.
(B) NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99
OF ANY INTENDED CHANGE IN POLICY WITH RESPECT TO: THE TIME PRESCRIBED
FOR MANAGEMENT TO RESPOND TO REQUESTS BY EMPLOYER FOR SCHEDULED LEAVE;
THE APPROVAL BY MANAGEMENT OF EMPLOYEES' REQUESTS TO TAKE LEAVE WITHOUT
PAY FOR VACATION PURPOSES; A PERFORMANCE EVALUATION SYSTEM, USING
STATISTICAL AVERAGES OR PERCENTAGES, TO MEASURE THE ACCEPTABLE LEVELS OF
COMPETENCE OF ITS EMPLOYEES, AND, UPON REQUEST, MEET AND CONFER IN GOOD
FAITH ON SUCH INTENDED CHANGE.
(C) POST AT ITS FACILITY AT THE BROOKHAVEN SERVICE CENTER, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE CHIEF OF THE DATA CONVERSION BRANCH AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE CHIEF OF THE BRANCH
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS NOTIFY THE FEDERAL
LABOR RELATIONS AUTHORITY WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 18, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE PROCESS OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE A TIME PERIOD WITH RESPECT TO RESPONSE BY
MANAGEMENT TO REQUESTS FOR APPROVAL OF SCHEDULED LEAVE, OR REQUIRING
THAT EXTENUATING CIRCUMSTANCES BE SHOWN BY EMPLOYEES BEFORE MANAGEMENT
WILL APPROVE LEAVE WITHOUT PAY FOR VACATION PURPOSES, WITHOUT FIRST
NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99 AND
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH
MATTER TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
WE WILL NOT INSTITUTE A PERFORMANCE EVALUATION SYSTEM, USING
STATISTICAL AVERAGES OR PERCENTAGES TO MEASURE ACCEPTABLE LEVELS OF
COMPETENCE OF OUR EMPLOYEES, WITH ATTENDANT DISCIPLINE IF SPECIFIED
STANDARDS ARE NOT MET, WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 99, AND AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTER TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND THAT PART OF THE EXPECTATIONS PACKAGE ISSUED AND
IMPLEMENTED ON MARCH 20, 1978 WHICH PROVIDES THAT: REQUESTS FOR
SCHEDULED LEAVE WILL BE RESPONDED TO BY MANAGEMENT WITHIN THREE DAYS AND
LEAVE WITHOUT PAY WITHIN 10 DAYS UNLESS THERE ARE EXTENUATING
CIRCUMSTANCES; LEAVE WITHOUT PAY WILL NOT BE APPROVED FOR VACATION
PURPOSES UNLESS THERE ARE EXTENUATING CIRCUMSTANCES; A PERFORMANCE
EVALUATION SYSTEM, USING STATISTICAL AVERAGES OR PERCENTAGES, WILL
MEASURE ACCEPTABLE LEVELS OF COMPETENCE OF EMPLOYEES, WITH ATTENDANT
DISCIPLINARY ACTION IF SPECIFIED STANDARDS ARE NOT MET.
WE WILL NOTIFY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
99 OF ANY INTENDED CHANGE IN POLICY WITH RESPECT TO THE TIME PRESCRIBED
FOR MANAGEMENT TO RESPOND TO REQUESTS BY EMPLOYEES FOR SCHEDULED LEAVE;
THE APPROVAL OF MANAGEMENT OF LEAVE WITHOUT PAY FOR VACATION PURPOSES;
A PERFORMANCE EVALUATION SYSTEM, USING STATISTICAL AVERAGES OR
PERCENTAGES, TO MEASURE THE ACCEPTABLE LEVELS OF COMPETENCE OF ITS
EMPLOYEES, AND UPON REQUEST, MEET AND CONFER ON SUCH MATTERS TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS.
AGENCY OR ACTIVITY
DATED: . . . BY: . . . SIGNATURE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK REGION,
WHOSE ADDRESS IS 26 FEDERAL PLAZA, ROOM 1751, NEW YORK, NY 10007.
--------------- FOOTNOTES$ ---------------
/1/ COMPLAINANTS OBJECTED AT THE OUTSET OF THE HEARINGS TO THE
INTRODUCTION BY RESPONDENTS OF ANY AFFIRMATIVE DEFENSE. A MOTION TO
THIS EFFECT WAS DENIED. IN VIEW OF THE DENIAL BY RESPONDENTS OF THE
COMMISSION OF ANY UNFAIR LABOR PRACTICES, AND THE FULL LITIGATION OF THE
ISSUES RAISED BY THE COMPLAINT, I SHALL CONSIDER ALL EVIDENCE ADDUCED AT
THE HEARING IN SUPPORT OF RESPONDENTS DEFENSES THERETO.
/2/ THIS WOULD INVOLVE THE SAME SECTION EMPLOYEES, AT THE SAME GRADE,
PERFORMING SIMILAR FUNCTIONS.
/3/ SAUNDERS TESTIFIED THE EMPLOYEES HAD ALSO BEEN JUDGED FOR
RETENTION OF THIS SYSTEM.
/4/ THIS LAST PART WAS LATER DROPPED FROM THE PACKAGE.
/5/ EVEN AT THIS LEVEL OF PERFORMANCE THE DATA TRANSCRIBER AT THE
CENTER WAS BELOW THE NATIONWIDE AVERAGE TRANSCRIBER. THIS WAS DUE TO
THE FACT THAT THESE EMPLOYEES PERFORMED POORLY AS COMPARED WITH
COMPARABLE INDIVIDUALS IN OTHER CENTERS.
/6/ UNLESS OTHERWISE STATED, ALL DATES HEREINAFTER MENTIONED ARE IN
1978.
/7/ WHILE HART TESTIFIED THAT THE AGENCY AGREED, DURING PREVIOUS
DISCUSSION, THAT DATA TRANSCRIBERS WOULD BE GIVEN UNPRODUCTIVE TIME TO
FILL OUT FORM 3081, I FIND THIS WAS LIMITED TO INSTANCES INVOLVING THE
FILING OF VOLUMINOUS RECORDS DURING UNUSUAL CIRCUMSTANCES.
/8/ THE PARTIES AGREED AT THE FEBRUARY 24 MEETING THAT THIS TERM
REFERRED TO ANNUAL LEAVE.
/9/ UNDER THE SECTION DEALING WITH "ANNUAL LEAVE" THE PACKAGE DID
STATE THAT REQUESTS SHOULD BE HELD TO A MINIMUM DURING THE PEAK
PROCESSING SEASON.
/10/ THE MCA HAS NO CORRELATIVE PROVISION DEALING WITH "EMERGENCY
ABSENCES." ON THE BASIS OF THE RECORD I FIND NO EVIDENCE SUPPORTING A
PRIOR PRACTICE CONTRARY TO THAT SET FORTH IN THE EXPECTATIONS.
/11/ THE MCA CONTAINS NO PROVISION CONCERNING LEAVE WITHOUT PAY, BUT
COMPLAINANTS CONTEND THE LANGUAGE IN THE PACKAGE DEVIATES FROM PAST
/12/ DESPITE ITS ANNOUNCED INTENTION TO DO SO, RESPONDENT CENTER DID
NOT SUPPRESS THE DATA OF THOSE SEPARATED FROM THE UNIT.
/13/ ARTICLES VI AND VIII OF THE MCA.
/14/ THE UNION INSISTED THESE PROVISIONS WERE ALREADY COVERED UNDER
THE MCA.
/15/ THE UNION